STATE OF NEW YORK
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                               JAMAICA, NEW YORK 11433

          APPEAL OF                              DOCKET NO.BI110073RO
                                              :  DRO DOCKET NO.49707

                                PETITIONER    : 

               On September 24, 1987, the above-named petitioner-owner filed 
          a Petition for Administrative Review against an order issued on 
          August 21, 1987, by the Rent Administrator, 10 Columbus Circle, New 
          York, New York, concerning the housing accommodations known as 84-25 
          Elmhurst Avenue, Queens, New York, Apartment No. 2S, wherein the 
          Rent Administrator determined that the owner had overcharged the 

               The Administrative Appeal is being determined pursuant to the 
          provisions of Section 2526.1 of the Rent Stabilization Code.

               The issue herein is whether the Rent Administrator's order was 

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

               This proceeding was originally commenced by the tenant's filing 
          of a timely objection to the 1984 registration stating in substance 
          that she was being overcharged in rent.

               The owner was served with a copy of the tenant's complaint and 
          directed to submit a rental history from April 1, 1980.  In answer, 
          the owner submitted copies of leases for the subject apartment from 
          September 1, 1977.

               In Order Number 49707, the Rent Administrator, based on the 
          rental history from April 1, 1980, determined that the tenant had 
          been overcharged in the amount of $5,181.44 from December 1, 1980 
          through August 31, 1987.

               In this petition, the owner alleges in substance that it is 
          entitled to a 10% vacancy allowance pursuant to Guideline 12 upon 
          initial occupancy by the tenant herein rather than the 5% allowed by 
          the Rent Administrator since the subject apartment had last been 
          vacated prior to July 31, 1975.  In support of this contention, the 
          owner submitted a copy of a lease from the prior tenant commencing 


          August 15, 1971.  Said prior tenant was still in occupancy 
          immediately prior to occupancy by the tenant herein.  The owner 
          alleges it was not asked to submit such earlier lease in the 
          proceeding before the Rent Administrator.  In addition the owner 
          alleges that the Rent Administrator failed to include the garage 
          rental amount of $25.00 in determining the tenant's rent.  The owner 
          states that the garage rent is included in the tenant's rent and 
          submits a copy of a garage rider not signed by the tenant in support 
          of this contention.

               The Commissioner is of the opinion that this petition should be 

               An examination of the rental history discloses that the owner 
          is correct in its contention that it is entitled to a 10% vacancy 
          allowance pursuant to Guideline 12 in that the subject apartment was 
          last vacant in 1971.  It is noted that the 1971 lease although 
          submitted for the first time on appeal is accepted into evidence 
          since the owner was not asked to submit a rental history prior to 
          April 1, 1980 in the proceeding before the Rent Administrator.

               However, the owner should have submitted the alleged garage 
          rider in the proceeding before the Rent Administrator and such 
          garage rider unsigned by the tenant submitted for the first time on 
          appeal cannot properly be considered since this is not a de novo 
          proceeding.  Moreover, the owner has submitted no evidence to show 
          that the garage rent was actually included in the tenant's rent or 
          that the prior tenant's rent did not include a garage space.  
          Further the overcharge in this case was caused by the owner's 
          compounding of guideline increases in the same guidelines period 
          rather than by any omission of a charge of $25.00 for a garage 
          space.  The owner charged $263.45 effective December 1, 1980 - that 
          is exactly 22% ( 17% for a three year lease plus 5% vacancy 
          allowance) over the rent charged effective September 1, 1980 during 
          the same guidelines 12 period which the owner was not permitted to 
          do.  Accordingly, no additional allowance for the alleged use of a 
          garage space is warranted. 

               Taking the above factors into account, the Commissioner has 
          recalculated the lawful stabilization rents and the amount of rent 
          overcharge for the subject apartment.  They are set forth on the 
          amended rent calculation chart attached hereto and made a part 

               The owner is directed to reflect the findings and 
          determinations made in this order on all future registration 
          statements, including those for the current year if not already 
          filed, citing this order as the basis for the change.  Registration 
          statements already on file, however, should not be amended to 
          reflect the findings and determinations made in this order.  The 
          owner is further directed to adjust subsequent rents to an amount no 


          greater than that determined by this order plus any lawful 

               The Commissioner has determined in this Order and Opinion that 
          the owner collected overcharges of $2,636.10.  This Order may, upon 
          expiration of the period for seeking review of this Order and 
          Opinion pursuant to Article Seventy-eight of the Civil Practice Law 
          and Rules, be filed and enforced as a judgment or not in excess of 
          twenty percent per month of the overcharge may be offset against any 
          rent thereafter due the owner.  Where the tenant credits the 
          overcharge, the tenant may add to the overcharge, or where the 
          tenant files this Order as a judgment, the County Clerk may add to 
          the overcharge, interest at the rate payable on a judgment pursuant 
          to section 5004 of the Civil Practice Law and Rules from the 
          issuance date of the Rent Administrator's Order to the issuance date 
          of the Commissioner's Order.

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

               ORDERED, that this petition for administrative review be, and 
          the same hereby is, granted in part, and, that the order of the Rent 
          Administrator be, and the same hereby is, modified in accordance 
          with this order and opinion.  The total overcharge through August 
          31, 1987 is $2,636.10.


                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner




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