BJ430247RO

                                  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.BJ430247RO
                                              :  DRO DOCKET NO.L3111882R
               CARL MARZANI                      TENANT:JOSEPH DOLAN

                                PETITIONER    : 
          ------------------------------------X                             
           ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN 
          PART


               On October 2, 1987, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on 
          September 3, 1987, by the Rent Administrator, 92-31 Union Hall 
          Street, Jamaica, New York, concerning the housing accommodations 
          known as 260 West 21st Street, New York, New York, Apartment No. 4L, 
          wherein the Rent Administrator determined that the owner had 
          overcharged the tenant.

               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 
          warranted.

               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 filing of a 
          rent overcharge complaint by the tenant in March, 1984, in which the 
          tenant stated in substance that he first moved to the subject 
          apartment in 1979 under a sublease agreement with the prior tenant; 
          that at the time of the sublease the prior tenant was paying a rent 
          of $262.00; that he paid the prior tenant $350.00 per month; that he 
          received a lease in his own name from the owner effective October 1, 
          1980 at a rent of $400.00 and received a three year renewal lease 
          effective October 1, 1982 at a rental of $440.00; that in October 
          1983 the owner sold the subject premises; and that as a result of an 
          order issued by the New York City Department of Housing Preservation 
          and Development, the subject apartment became subject to rent 
          control effective October 27, 1983 at a rental of $282.41; that he 
          has been paying a rent of $282.41 since November 1983, and has not 
          been overcharged since paying that rent.  

               The owner was served with a copy of the tenant's complaint and 
          directed to submit a rental history.  In response, the owner stated 
          in substance that he had sold the subject premises on October 1, 
          1983 and did not believe that there was any further rent claim 









          BJ430247RO



          against him; and that he did not have any leases or a "rent book".

               In Order Number CDR31,293, the Rent Administrator listed the 
          October 1, 1980 legal regulated rent as $324.88 and determined that 
          the owner herein had collected a rent overcharge of $2944.82 
          including excess security covering the period from October 1, 1980 
          to October 26, 1983.

               In this petition, the owner contends in substance that the 
          October 1983 rent was paid to the new owner so that he should not be 
          liable for this amount; that the security deposit was given to the 
          new owner so that he should not be held liable for the refund of 
          excess security; that he doesn't understand how the rent effective 
          October 1, 1980 was established at $324.88 per month and that for 
          many years he charged less than the legal rent so that he should not 
          now be penalized.

               In answer to the owner's petition, the tenant stated in 
          substance that the Rent Administrator's order should be affirmed but 
          that if it is true that the building was sold, the owner should only 
          be responsible for the time he owned the building.

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

               The October 1, 1980 rent of $324.88 was calculated as the prior 
          tenant's rent of $262.00 increased by 24 percent - a guideline 
          increase of 14 percent and a vacancy allowance of 10 percent for a 
          two year vacancy lease pursuant to Guideline 12.  It was proper to 
          consider the prior tenant's rent as $262.00 since the tenant claimed 
          such amount in his original complaint and the owner did not dispute 
          it or submit a rental history of his own.

               However, the record in the instant case discloses that the 
          owner is correct in his contention that he sold the subject premises 
          in October 1983 and that the October 1983 rent was paid by the 
          tenant to the new owner.  Further since the owner herein turned over 
          the security deposit to the new owner, the excess security should be 
          deleted from the overcharge as well.  Accordingly, these amounts are 
          being subtracted from the total overcharge leaving a total remaining 
          overcharge of $2794.44 for the period from October 1, 1980 through 
          September 30, 1983.

                 Further the owner's contention that he may at one time have 
          accepted less rent than he could have charged does not excuse the 
          overcharge which occurred during occupancy by the tenant herein.









               The owner is directed to reflect the findings and 


          BJ430247RO

          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 
          increases.

               This order may, 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, be filed and enforced in the same manner as 
          a judgment or not in excess of twenty percent per month thereof may 
          be offset against any rent thereafter due the owner.

               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, affirmed as modified to 
          show a total overcharge excluding excess security of $2794.44. 

          ISSUED



                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner








                     


























          BJ430247RO












    

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