BL 410343-RO; CH 410044-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 410343-RO 
                                                        (reopened)
                                                        CH 410044-RT
                                                        (reopened)

                                          :  DISTRICT RENT OFFICE
           Antoinette Giaimo (owner),        DOCKET NO. CE-410001-RP 
                     and                                CDR 31755 As Amended
           Lydia Andre (tenant),                        (L-3110119-R)
                                                        (CDR 31755)
                                      

                              PETITIONERS : 
      ------------------------------------X                             

          ORDER AND OPINION GRANTING PETITIONS FOR ADMINISTRATIVE REVIEW
                   IN PART AFTER REOPENING UPON RECONSIDERATION


      On November 5, 1992 an order was issued in Docket Nos. BL 410343-RO and 
      CH 410044-RT, finding an overcharge of $736.36 through October 31, 1987 
      at Apartment 3RW, 8 Spring Street, New York, New York.  Although 
      overcharges were calculated only through October 31, 1987, since the 
      owner reduced the rent to $238.14 on November 1, 1987 as a result of a 
      Rent Administrator's order, the November 5, 1992 order listed the 
      collectible rent as $525.00 per month through February 28, 1990, as a 
      way of making clear that it was frozen until the owner properly 
      registered the apartment, at which time a prospective increase could be 
      taken, without charging more than $525.00 per month for any period prior 
      to such registration.  The order noted that the tenant would owe arrears 
      of over $10,000, and directed the owner to allow her to pay off any such 
      arrears over a 24-month period.

      The tenant subsequently requested reconsideration of the order on the 
      ground that she did not owe any arrears, since the owner had raised the 
      rent to $589.01 on August 1, 1988 and had taken subsequent increases, 
      and that there was in fact an overcharge of over $2,800 as of November 
      30, 1992, not including interest.  She asked how she might collect the 
      overcharges due her, and whether or not she could begin paying a rent of 
      $525.00 as of December 1, 1992.  While her request was dated October 10, 
      1992, it is clear that she is referring to the November 5, 1992 order, 
      and is concerned about the 60 day period (after the issuance of an order 
      on that date) in which to file an Article 78 petition.  It is likely 












          BL 410343-RO; CH 410044-RT

      that her letter should have been dated November 10 rather than October 
      10, 1992.

      On December 8, 1992 the tenant's request for reconsideration was 
      granted, and that proceeding was reopened.  Based thereon, the 
      Commissioner finds that the Commissioner's November 5, 1992 order should 
      be modified.

      While the parties agree that the owner reduced the rent collected 
      beginning November 1, 1987, they also agree that she later increased the 
      rent based on the July 15, 1988 amended order.  Because the November 5, 
      1992 order did not actually determine any arrears (or overcharge) for 
      the period on and after November 1, 1987, no harm is done by modifying 
      the rent calculation chart to remove the amounts of "Actual Rent 
      Charged" beginning November 1, 1987 and March 1, 1988, and by deleting 
      the penultimate paragraph, referring to arrears, in the body of the 
      order.  

      The order is not modified in finding an overcharge of $736.36 from March 
      1, 1986 to October 31, 1987, or in finding that the maximum lawfully 
      collectible stabilization rent remains at $525.00 per month until the 
      owner corrects the 1984 registration and registers the apartment for all 
      subsequent years.  The owner is cautioned to adjust the rent for any 
      periods after October 31, 1987 to amounts no greater than determined in 
      this order plus any lawful increases, and to register any adjusted rents 
      (if different from the rents which the owner may have registered in the 
      registrations which she claimed on December 4, 1992 to have recently 
      filed), with this order being given as the reason for the adjustment.  
      To preserve her rights the tenant may wish to file another overcharge 
      complaint, and objection to the recently filed registrations, for 
      periods after October 30, 1987, referring to this order in order to 
      avoid confusion in processing of the complaint/objection.  Regarding the 
      rent that the tenant is now required to pay, the Commissioner notes that 
      the owner now claims to have recently filed registrations as required to 
      be able to prospectively collect all lawful increases above the lawful 
      March 1, 1984 rent of $525.00.

      On December 9, 1992 the owner, by letter from her representative Edward 
      Giaimo dated December 4, 1992, also requested reconsideration.  By 
      letter dated December 14, 1992 the owner has acknowledged receiving the 
      December 8, 1992 order granting the tenant's request for reconsideration 
      and reopening this proceeding.  The owner argues that the entire matter 
      should be reopened on all issues, and not just on the issues raised by 
      the tenant.   

      The owner contends in substance that the former Rent Stabilization Code 
      should have been, but was not, applied to this proceeding, which was 
      initiated by a complaint filed prior to April 1, 1984; that an 
      unconstitutional ex post facto application was being made of a rent 
      freeze penalty that did not exist at the time of the original complaint; 
      that the tenant's complaint freezes and limits the record, since the 
      complaint was never amended or supplemented; that there was no 






          BL 410343-RO; CH 410044-RT

      registration requirement at the time the complaint was made, so any 
      alleged failure to register the subject apartment cannot form a basis 
      for any penalty; that the owner registered the subject apartment on June 
      27, 1984 as exempt due to substantial rehabilitation; that the 
      registration of exempt apartments is for the record only and, until 
      1989, was not even required of exempt apartments that had already been 
      once registered as such; that there has been confusion because a post- 
      April 1, 1984 overcharge complaint (Docket No. 036178) was consolidated 
      with the pre-April 1, 1984 complaint; that the owner's December 11, 1987 
      Petition for Administrative Review ("PAR") and the tenant's August 18, 
      1988 PAR against the July 15, 1988 amended order stayed all aspects of 
      the orders other than their determinations of the lawful rents; that the 
      owner's April 1, 1984 registration of the apartment as exempt was still 
      in effect since any directive in the July 15, 1988 order to amend the 
      registration to conform was stayed until the issuance of a final order, 
      which occurred on November 5, 1992; that the November 5, 1992 order 
      implies that the owner did not register the apartment in 1984, even 
      though the owner submitted a date-stamped copy and even though the 
      tenant acknowledged receiving it; and that the tenant's October 10, 1992 
      request for reconsideration indicates that she was improperly shown a 
      copy of the proposed order before it was issued on November 5, 1992.

      The Commissioner is of the opinion that the owner's and tenant's 
      Petitions for Administrative Review should be granted in part, that the 
      Commissioner's November 5, 1992 order should be modified, and that the 
      owner's request for reconsideration should be denied.

      The courts of this State have repeatedly held that there must be 
      finality in administrative proceedings.  The Commissioner's authority to 
      reopen an Administrative Appeal is strictly limited to where the "order 
      was the result of illegality, irregularity in a vital matter, or fraud."

      Review  of the matter does not disclose any legal basis for reopening 
      the owner's Administrative Appeal. 

      Section 15 of the Omnibus Housing Act (Chapter 403, Laws of 1983) added 
      Section YY51-6.0.6., concerning registration requirements and  freezing 
      of the collectible rent for a failure to file an initial or annual 
      registration, to the Administrative Code of the City of New York, 
      effective April 1, 1984.  This registration requirement applied to the 
      subject apartment as of April 1, 1984, without any need for the owner to 
      be put on notice of it by a complaint or to be directed by a DHCR order 
      to register the apartment.  While the tenant's complaint in Docket No. 
      L-3110119-R was filed prior to April 1, 1984, the rent is being frozen, 
      with a resultant overcharge, only for periods after the registration 
      requirements were in effect and during which the owner increased the 
      rent despite not having met the requirement of annual registration, such 
      periods being during the course of an ongoing overcharge proceeding.  
      The tenant's filing of an overcharge complaint prior to April 1, 1984 
      does not somehow relieve the owner of her obligation to comply with the 
      Omnibus Housing Act during the course of the proceeding; it is proper to 
      apply that Act to actions, and non-registration, occurring after April 












          BL 410343-RO; CH 410044-RT

      1, 1984 during the course of the proceeding.  (In addition, the tenant 
      filed a post-April 1, 1984 overcharge complaint in September, 1984 in 
      Docket No. 36178.  A December 2, 1986 order in that case stated that the 
      overcharge portion of her registration objection would be consolidated 
      with Docket No. L-3110119-R).  Because the requirement of annual 
      registration was not dependent on DHCR orders, there was no automatic 
      stay of that requirement upon the filing of PAR's.  While the owner may 
      be correct that exempt apartments did not have to be registered annually 
      after the initial registration (at least for several years after 1984), 
      that applies only to apartments that actually are exempt from rent 
      regulation.  The subject apartment did not meet the requirements for 
      exemption in 1984, and every order to date has continued to find that it 
      was not and is not exempt.  An owner who is of the opinion that an 
      apartment is exempt is best advised to register it annually, even if 
      only as exempt, until receiving a formal determination confirming that 
      opinion.

      Regarding the owner's other contentions: The November 5, 1992 order did 
      not deny the fact of the initial registration in 1984, but froze the 
      collectible rents because the owner had failed to file subsequent annual 
      registrations.  As mentioned earlier, the tenant's October 10, 1992 
      letter was misdated, since it is referring to an order which she did not 
      see, in proposed or final form, until after it was issued on November 5, 
      1992.

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

      ORDERED, that these petitions be, and the same hereby are, granted in 
      part; that the Administrator's July 15, 1988 order and the 
      Commissioner's November 5, 1992 order be, and the same hereby are, 
      modified in accordance with this order and opinion; and that the owner's 
      request for reconsideration be, and the same hereby is, denied.


      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner
    

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