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.: BJ 210082-RO
                                         :  
                                            DRO DOCKET NO.: K 3105968-R
       SHAW BENNETT CO.,
                           PETITIONER    :  TENANT: DORISTEEN SEABROOK
     ------------------------------------X                             

       ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART

     On October 1, 1987, the above-named petitioner-owner filed a Petition  for
     Administrative Review of an order  issued  on  August  28,  1987,  by  the
     District Rent Administrator,  10  Columbus  Circle,  New  York  concerning
     housing accommodations  known  as  Apartment  1B  448  East  22nd  Street,
     Brooklyn,  New  York  11226  wherein  the  District   Rent   Administrator
     determined that the tenant had been overcharged.

     The Commissioner notes that this proceeding was initiated prior  to  April
     1, 1984.  Sections 2526.1(a)(4) and 2521.1(d) of  the  Rent  Stabilization
     Code (effective May 1, 1987) governing rent  overcharge  and  fair  market
     rent proceedings provide that determination of these matters be based upon 
     the law or code provisions in effect on March 31, 1984.  Therefore, unless 
     otherwise indicated, reference to sections of the Rent Stabilization  Code
     (Code) contained herein are to the Code in effect on April 30, 1987.

     The issue in this appeal is  whether  the  District  Rent  Administrator's
     order was warranted.

     This  proceeding  was  originally  commenced  by  the  filing  of  a  rent
     overcharge complaint by the tenant, (Doristeen Seabrook) with  the  former
     New York City Conciliation and Appeals Board (CAB), one of the predecessor 
     agencies to the DHCR.  In the complaint, the  tenant  contended  that  she
     moved into the apartment on February 26, 1978 pursuant to a one year lease 
     expiring in February 1979 at a monthly rental of $259.00.  Thereafter  her
     rent was increased as follows: 1979-$275.73;  two  increases  in  1980  to
     $282.00 and $294.62; 1982 and 1983 - $330.67; and  1984  -  $353.84.   The
     tenant also indicated that there was an extra charge in the form of a fuel 
     increase but did not specify the amount or when  the  increase  was  paid.
     Further, the tenant contended that the owner refused  to  show  her  prior
     leases.

     The owner was served with a copy of the complaint  and  was  requested  to
     submit rent records to prove the lawfulness of the rent being charged.  In 
     answer to the complaint the owner  stated  that  the  base  date  for  the
     apartment was August 1, 1973 and that the rent charged on  the  base  date
     was $220.00.  The owner provided a complete rental history and submitted a 










          DOCKET NUMBER: BJ 210082-RO
     report of statutory decontrol as well as leases for the  period  beginning
     August 1, 1973 and ending February 28, 1988.  The owner contended that the 
     tenant's complaint was not filed prior to  April  1,  1984,  that  it  was
     stamped March 31, 1984 by the Conciliation and Appeals Board but that  the
     envelope contained in the Division's files in which the tenant mailed  her
     complaint is postmarked April 2, 1984.

     In Order  Number  21,351  as  amended,  the  District  Rent  Administrator
     determined that $363.99 was the lawful stabilized rent as of March 1, 1986 
     through February 28, 1988, directed the owner to roll back the rent to the 
     lawful stabilized amount and ordered a refund of $963.20.

     In the petition the owner contends that it was agreed  between  the  owner
     and the tenant, after the lease for the period March,  1979  to  February,
     1981 was signed, that the rent for that lease term would  be  $282.62  and
     not $273.00 as indicated in the Administrator's order.  In support of  its
     position the owner submits a copy of the lease containing the  handwritten
     revision.

     The owner also contends that the tenant's complaint was  postmarked  April
     2, 1984 and that the Division did  not  have  jurisdiction  to  issue  the
     August 28, 1987 order or to make the determination contained therein.

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

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

     The Division's authority to determine rent overcharge  complaints  is  not
     limited by the date such complaint is filed.  The Division's  jurisdiction
     to make such determination continues beyond March 31,  1984.   The  filing
     date, however, does determine whether the  tenant's  complaint  is  to  be
     decided in accordance with the law or code provisions in effect  on  March
     31, 1984, or a later revision of the law or code.  The Commissioner is  of
     the opinion that the tenant's complaint was filed on March 31,  1984,  the
     date the complaint was stamped by the Conciliation and Appeals Board.   As
     it cannot be determined from the record what correspondence was mailed  in
     the envelop postmarked April 2, 1984 the Commissioner concludes  based  on
     the date stamp applied by the Conciliation  and  Appeals  Board  that  the
     Complaint  was  filed  prior  to  April  1,  1984  and  the  Administrator
     correctly considered the complaint pursuant to the code in effect prior to 
     that date.

     As for the calculation of the overcharge, the Commissioner finds that Rent 
     Guidelines Board Order Number 10, issued June 28, 1978, provided a 5  1/2%
     increase above the June 30, 1978 rent for a two  year  lease.   Guidelines
     10a, issued April 6, 1979, superseded Guidelines 10 and permitted a 6 1/2% 
     increase retroactive  to  lease  commencement.   Furthermore,  a  2%  fuel
     adjustment for the lease commencing March 1979, as well as  a  $12.00  per
     month fuel surcharge, applicable for the period January 1, 1980 through 









          DOCKET NUMBER: BJ 210082-RO
     June 30, 1980, reduced to $8.00 per month beginning July 1980 to  the  end
     of the lease, would also have been authorized under Rent  Guidelines  10b,
     c, and d.  The fuel adjustment is not part of the Base Rent but a separate 
     charge and therefore cannot be included when  computing  subsequent  lease
     increases.  The fuel adjustment ends when the lease to  which  it  applied
     expires.

     The rent history submitted by the owner  to  the  Administrator  indicates
     that the tenant's rent of $273.00 for the lease term beginning March, 1979 
     was increased during the lease term to $294.62 to  reflect  a  retroactive
     Guideline 10a increase of 1% in the base rent plus a fuel  adjustment  and
     surcharges.  The figure of $294.62 includes the Guideline 10c surcharge of 
     $12.00.  There is no indication that this amount was reduced to $8.00  per
     month as required by Guideline 10d.

     The Commissioner therefore finds that the Administrator erred in using, as 
     the actual rent charged for  the  Guideline  10  lease,  the  rent  amount
     without the 1% Guideline 10a increase, where the owner had availed  itself
     of and later  applied  the  10a  adjustment.   Fuel  increases  were  also
     incorrectly calculated.

     Based on the foregoing, the Administrator's overcharge finding  is  hereby
     modified in accordance with the attached rent calculation  chart  and  the
     total amount of the overcharge is $823.30 including  interest  and  excess
     security.

     The owner is directed to refund all overcharges to the tenant.

     Upon the expiration of the period in  which  the  owner  may  institute  a
     proceeding pursuant to Article 78 of the Civil Practice Law and Rules, the 
     tenant may offset an amount  not  in  excess  of  twenty  percent  of  the
     overcharge per month, against any rent thereafter due the owner.

     Any arrears owed by the tenant as a result of this order may  be  paid  by
     the tenant in equal monthly installments over the next six months.
      
     THEREFORE, in accordance with the Rent Stabilization Law and Code, it is

     ORDERED, that this petition be and the same hereby is granted in part  and
     the administrator's order be modified in accordance with the attached Rent 
     Calculation Chart.

     ISSUED:

                                                                   
                                     JOSEPH A. D'AGOSTA
                                     Deputy Commissioner



                                         
    

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