DOC. NO.: BL 410217-RT
                                 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
         IN THE MATTER OF THE ADMINISTRATIVE :        ADMINISTRATIVE REVIEW
         APPEAL OF                               DOCKET NO. BL 410217-RT
                   MARY EILEEN EDSELL        :         D.R.O. DOCKET NO.:
                                 PETITIONER  :              ZL 001406-R

         ------------------------------------X


            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                   AND REMANDING PROCEEDING FOR FURTHER PROCESSING


         On December 14, 1987, the above-named petitioner filed a Petition for 
         Administrative Review against an order issued on November 13, 1987 by 
         the Rent Administrator, 92-31 Union Hall Street, Jamaica, New York 
         concerning the housing accommodation known as 240 West 73 Street, 
         apartment 212, New York, New York wherein the Administrator denied the 
         tenant's rent overcharge application.

         The Commissioner has reviewed all the evidence in the record and has 
         carefully considered that portion of the record relevant to the issues 
         raised in the administrative appeal.

         The tenant commenced this proceeding on April 4, 1985 by filing a 
         complaint of rent overcharge.  The tenant stated that she had taken 
         occupancy of the subject apartment pursuant to a one year vacancy 
         lease, commencing April 13, 1984, and terminating April 30, 1985 at a 
         monthly rent of $500.00.

         On May 24, 1985, a copy of the complaint was sent to the owner.

         In response, the owner requested that the tenant's complaint 
         (characterized by the owner as an objection to the registration) be 
         dismissed because the tenant had failed to file the complaint within 
         90 days of having received the apartment registration form (RR-1).

         In reply, the tenant stated that she had not challenged the 
         apartment registration at the time of its receipt because she was 
         unaware that the rent she was paying was an overcharge and that when 
         she learned of the prior tenant's rent, she filed a complaint.

         In reply, the owner repeated its answer to the complaint.















         DOC. NO.: BL 410217-RT
         In further reply, the tenant asserted that since the owner had 
         engaged in deceit, e.g. an obsolete rider, which had permitted 
         market rent upon voluntary vacancy (which allegedly was superseded 
         in 1983 pursuant to Chapter 448 of the Laws of 1983) was attached to 
         her initial lease, she had had no basis upon which to challenge the 
         apartment registration within 90 days.

         On October 7, 1985, the owner replied in pertinent part that since 
         the prior tenant had vacated by reason of death, allegedly not a 
         voluntary vacancy, the change in the law is inapplicable and the 
         rental may be charged at market value.

         On September 17, 1987, the Division notified the owner that the 
         subject apartment was not properly registered.

         The owner sent a copy of the 1984 apartment registration and a 
         statement  signed by the tenant acknowledging its receipt.

         In the order issued on November 13, 1987, the Administrator 
         determined that there was no overcharge and denied the tenant's 
         application.

         In the petition, the tenant contends that the owner wilfully 
         falsified the lease thereby divesting her of any basis to challenge 
         the rent.  The tenant contends that the owner attached the lease 
         rider which read in pertinent part "there is no restriction on the 
         amount of rent that may be charge for a vacant unit", with the 
         intent of charging an illegal increase in rent.  Pursuant to the 
         Omnibus Housing Act of 1983, it was the owner's responsibility to 
         make known and to make available the governing law for hotel 
         stabilized apartments.  The tenant further contends that the 
         instructions for the RR-1 were inadequate to provide the means for 
         insuring a fair rent to tenants in her particular circumstance, i.e. 
         tenants of units which were vacant on April 1, 1984.  Moreover, the 
         tenant argues that the RR-1 instructions are inadequate in 
         situations where a tenant has been deceived by intentionally 
         misleading statements in the lease.

         The owner states that the appeal is merely an excuse to level 
         inappropriate charges of fraud.  Since the tenant admits to 
         receiving the RR-1 form, her failure to file the complaint within 90 
         days constitutes an absolute bar to any rent overcharge complaint.

         The Commissioner is of the opinion that this petition should be 
         granted.





         A review of the record discloses that the owner timely served the 
         tenant with an apartment registration form.  However, contrary to 
         the requirements of Code section 2528.1, it failed to timely 




         DOC. NO.: BL 410217-RT
         register the subject apartment.  The 1984 registration was not filed 
         with the Division until 1987, long after the complaint was filed.  
         Furthermore, the registration form at issue is defective in that it 
         does not include, as required by Code section 2528.2(4), the rent 
         charged on April 1, 1984.  Furthermore, the rider's statement that 
         there was no restriction on the vacancy rent was a material, 
         written misrepresentation that could affect the tenant's decision to 
         file a challenge.   It is unnecessary to delve, at this juncture, 
         into the owner's intent or the tenant's charges of fraud.  Given the 
         totality of the circumstances, however, the lease rider provided and 
         the owner's failure to adhere meaningfully to the provisions of the 
         Code, specifically, section 2528, the tenant was deprived of the 
         ability to file a knowledgeable complaint within 90 days.  Moreover, 
         since the subject apartment was not registered with the DHCR until 
         1987, the tenant was not limited to the 90 days after receiving the 
         registration form to file the complaint.

            

         THEREFORE, in accordance with the Rent Stabilization Law and Code, 
         it is

         ORDERED, that this petition be, and the same hereby is, granted to 
         the extent of remanding the proceeding and the order of the Rent 
         Administrator be, and the same hereby is, revoked in accordance with 
         this order and opinion.

         ISSUED:

                                      
         ELLIOT SANDER
         Deputy Commissioner








    

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