BL110142RO

                                STATE OF NEW YORK
                    DIVISION OF HOUSING AND COMMUNITY RENEWAL
                          OFFICE OF RENT ADMINISTRATION
                                   GERTZ PLAZA
                             92-31 UNION HALL STREET
                             JAMAICA, NEW YORK 11433

      ------------------------------------X  SJR 6483
      IN THE MATTER OF THE ADMINISTRATIVE    ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NO.: BL110142RO

           Trump Management, Inc.,           DRO DOCKET NO.: Q3120348R

                                             TENANT: Sung Kim                 
                               PETITIONER    
      ------------------------------------X                             

          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW


      On December 18, 1987, the above-named owner filed a Petition for 
      Administrative Review ("PAR") against a Rent Administrator's order of 
      November 17, 1987, concerning the housing accommodations known as 41-10 
      Bowne Street, Flushing, New York, Apartment No. #3E, wherein the  
      Administrator determined that the tenant had been overcharged.

      This case originated in 1984 as a "Tenant's Complaint of Rent 
      Overcharges [,etc.]"  The owner was never served with same, though it 
      was later served with a "Final Notice of Pending Default," in which the 
      Administrator requested copies of leases and other documents necessary 
      to reconstruct the pertinent rental history.  The owner did not submit 
      those documents and in the ensuing order, here appealed, the 
      Administrator determined that, due to the owner's failure to submit a 
      complete rental history, the tenant would be deemed to have been 
      overcharged in the amount of $6,000.38; the Administrator directed the 
      owner to refund such overcharge as well as to reduce the rent.

      The owner then filed the above-referenced PAR, asserting inter alia: 
      that after the Rent Administrator had instructed the owner, in October, 
      1986, to submit evidence, the owner had spoken to a named employee of 
      the DHCR, informing her that it had received no complaint in this 
      matter; and that the Administrator's acts herein were such as to deprive 
      the 
      owner of property without due process of law.  In addition the owner 
      submitted a complete rental history on appeal.  The record contains no 
      tenant's response.  

      In 1992 the Commissioner issued an Order and Opinion denying the PAR, 
      from which decision the owner filed a petition under Article 78 of the 
      Civil Practice Law and Rules, requesting its reversal.  Pursuant to the 
      parties' stipulation, the matter has now been remitted to the 
      Commissioner for redetermination.

      After careful reconsideration of the record, the Commissioner is of the 
      opinion that this petition should be granted.



      It was error to have declared the owner's default when the owner had not 







          BL110142RO

      been served with the complaint.  The Commissioner will therefore admit 
      the documentation that was submitted with the PAR and will determine 
      this overcharge case on its merits.

      Section 42A of the former Rent Stabilization Code requires that an owner 
      retain complete records for each stabilized apartment in effect from 
      June 30, 1974 (or the date the apartment became subject to rent 
      stabilization, if later) and to produce such records to the DHCR upon 
      demand.

      Section 26-516 of the Rent Stabilization Law, effective April 1, 1984, 
      limited an owner's obligation to provide rent records by providing that 
      an owner may not be required to maintain or to produce rent records for 
      more than four years prior to the most recent registration, and 
      concomitantly, established a four-year limitation on the calculation of 
      rent overcharges.

      It has been the DHCR's policy that overcharge complaints filed prior to 
      April 1, 1984, are to be processed pursuant to the Law or Code in effect 
      on March 31, 1984. (See Section 2526.1 (a) (4) of the current Rent 
      Stabilization Code.)  The DHCR has therefore applied Section 42A of the 
      former Code to overcharge complaints filed prior to April 1, 1984, 
      requiring complete rent records in these cases.  In following this 
      policy, the DHCR has sought to be consistent with the legislative intent 
      of the Omnibus Housing Act (Chapter 403, Laws of 1983), as implemented 
      by the New York City Conciliation and Appeals Board (CAB), the 
      predecessor agency to the DHCR, to determine rent overcharge complaints 
      filed with the CAB prior to April 1, 1984, by applying the law in effect 
      at the time such complaints were filed so as not to deprive such tenants 
      of their rights to have the lawful stabilized rent determined from the 
      June 30, 1974 base date and so as not to deprive tenants whose 
      overcharge claims accrued more than four years prior to April 1, 1984, 
      of the right to recover such overcharges.  In such cases, if the owner 
      failed to produce the required rent records, the lawful stabilized rent 
      would be determined pursuant to the default procedure approved by the 
      Court of Appeals in 61 Jane Street Associates v. CAB, 65 N.Y.2d 898, 493 
      N.Y. S. 2d 455 (1985).

      However, it has recently been held in the case of J.R.D. Mgmt. v. 
      Eimicke, 148 A.D.2d 610. 539 N.Y.S. 2d 667 (2d Dept., 1989, motion for 
      leave to reargue or for leave to appeal to the Court of Appeals denied 
      (App. Div. 2d Dept., N.Y.L.J., June 28, 1989. p.25, col.1), motion for 
      leave to appeal to the Court of Appeals denied (N.Y.L.J., Nov. 24, 1989, 
      p.24, col.4)., motion for leave to reargue denied (N.Y.L.J., Feb. 15, 
      1990, p.25, col.1)), that the law in effect at the time of the 
      determination of the administrative complaint, rather than the law in 
      effect at the time of the filing of the complaint, must be applied, and 
      that the DHCR could not require an owner to produce more than four years 
      of rent records.

      Since the issuance of the decision in JRD, the Appellate Division, First 
      Department, in the case of Lavanant v. DHCR, 148 A.D.2d 185, 544 
      N.Y.S.2d 331 (1st Dept. 1989), has issued a decision in direct conflict 
      with the holding in JRD.  The Lavanant court expressly rejected the JRD 
      ruling, finding that the DHCR may properly require an owner to submit 
      complete rent records, rather than records for just four years, and that 
      such requirement is both rational and supported by the law and 
      legislative history of the Omnibus Housing Act.


          BL110142RO


      Since in the instant case the subject dwelling unit is located in the 
      Second Department, the DHCR is constrained to follow the JRD decision in 
      determining the tenant's overcharge complaint, limiting the requirement 
      for rent records to April 1, 1980.  Examination of those records 
      discloses no overcharge since that date; the Commissioner therefore must 
      and hereby does conclude that, in the context of the JRD ruling, the 
      complaint herein is without merit.

      If the owner has already complied with the Rent Administrator's order 
      and there are arrears due to the owner as a result of the instant 
      determination, the tenant is permitted to pay off the arrears in 24 
      equal monthly installments.  Should the tenant vacate after the issuance 
      of this order or have already vacated, said arrears shall be payable 
      immediately.

      THEREFORE, in accordance with the Appellate Division ruling in JRD, it 
      is

      ORDERED, that this petition be, and the same hereby is, granted, and 
      that the Rent Administrator's order be, and the same hereby is, revoked.


      ISSUED:



                                                                  
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner





    

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