BJ430318RO
                             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. BJ430318RO

                                          :  DISTRICT RENT OFFICE
           VVGM Realty Associates,           DOCKET NO. TC080254G
                                            
                                             TENANT: Martha Hartsman          
                 
                            PETITIONER    : 
      ------------------------------------X                             

           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


      On October 2, 1987, the above-named petitioner-owner filed a Petition 
      for Administrative Review against an order issued on August 31, 1987, by 
      the Rent Administrator, 10 Columbus Circle, New York, New York, 
      concerning the housing accommodations known as 365 West 50th Street, 
      New York, New York, Apartment No. 2E, a/k/a 3, wherein the Rent 
      Administrator determined that the tenant had been overcharged.

      The Commissioner notes that this proceeding was filed 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 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 in December 1983 
      of a rent overcharge complaint by the tenant.

      In answer to the complaint the owner submitted a rental history from the 
      date the subject apartment first became stabilized due to vacancy 
      decontrol - November 1, 1977 and stated that it was entitled to a rent 
      increase for a major capital improvement due to renovations it made 
      pursuant to the provision of Section J51-2.5(f) of the Administrative 
      Code - hereafter J51 program.

      In Order Number CDR31,263, the Rent Administrator determined that the 
      tenants had been overcharged in the amount of $4,438.84 through November 
      14, 1987 and directed the owner to refund such overcharges to the 
      tenant.  In such order no rent increase was granted for the renovation 
      work performed pursuant to the J51 program.

      In this petition, the owner contends in substance that the Rent 
      Administrator incorrectly applied the relevant sections of the Rent 







          BJ430318RO

      Stabilization Code, made errors in calculations and failed to allow 
      permissible increases for a new sink, refrigerator, M.C.I. (the owner 
      here was referring to the J51 program renovations), and fuel 
      adjustments.

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

      An examination of the record in this case discloses that the owner did 
      receive a rent increase for the new refrigerator of $11.64 effective 
      November 15, 1982 but that an allowance for a new sink was correctly 
      denied since the owner failed to establish the exact cost of the sink 
      and failed to establish that the sink was installed during a vacancy 
      period or that the tenant then in occupancy agreed to the installation.  
      Further the record establish that the owner did participate in the J51 
      program and received a tax abatement but that the renovation work done 
      was in other apartments or the public areas of the subject premises and 
      not in the subject apartment.  Since the owner did not apply for a major 
      capital improvement rent increase from the DHCR for the work done in the 
      public areas, it was correct for the Rent Administrator to disallow any 
      rent increase for this work.

      The records further show that the Rent Administrator properly held that 
      Section 20A(4) of the Rent Stabilization Code precluded the granting of 
      any rent increase until the expiration of the initial stabilization 
      lease.

      Further the record does not show that the owner took any temporary fuel 
      surcharges to which it may have been entitled and in any event such 
      increases would not become part of the base rent and would not affect 
      the rent of the tenant herein who first moved to the subject apartment 
      on November 15, 1979.  Therefore, the Rent Administrator's order was 
      warranted.

      The owner is directed to reflect the findings and determinations made in 
      the Rent Administrator's 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 the Rent Administrator's 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 Rent Stabilization Law and Code, it is




      ORDERED, that this petition be, and the same hereby is denied and the 
      Rent Administrator's order be, and the same hereby is, affirmed.

      ISSUED:


          BJ430318RO




                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner





    

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