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 410233-RO
                                         :  
                                            DRO DOCKET NO.: L 3110452-R
        111 REALTY CO.,                                     CDR 31798
                           PETITIONER    : 
     ------------------------------------X                             


           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                        AFTER REOPENING AND RECONSIDERATION


     On December 16, 1987 the abovenamed petitioner owner filed a Petition  for
     Administrative Review against an order issued on November 12, 1987 by  the
     Rent  Administrator  of  the  10  Columbus  Circle  District  Rent  Office
     concerning the housing accommodations known as 111 Third Avenue, Apartment 
     11A, Lower Manhattan.

     The tenant, Wanda Bershen, filed a complaint of overcharges on March 26, 1 
     984.  The  herein  appealed  order  of  the  District  Rent  Administrator
     established stabilized rents and directed a refund of overcharges.  A full 
     rental history had been submitted.

     It appears from the record that the rent of the tenant  immediately  prior
     to Ms. Bershen,  Debra  Kronick,  had  been  adjusted  to  $356.23  as  of
     September 1, 1980 pursuant to Guideline 12 for  a  1  year  lease  and  to
     $416.79 as of September 1,  1981  for  a  three  year  lease  pursuant  to
     Guideline 12a.

     However, Ms. Kronick vacated less than a  month  after  signing  the  1981
     lease renewal and Ms Bershen took occupancy as of October 1, 1981 pursuant 
     to a one year lease at a rent of $528.49.  The District Rent Administrator 
     established her initial rent at $445.29 pursuant to guideline 13  computed
     on Ms Kronick's 1980 rent of $356.23 plus 25% (guideline and 15% vacancy). 
     The District Rent Administrator then updated her  rent  through  September
     31, 1988 and directed a refund of $7,604.97, including  interest,  through
     October 30, 1987.

     In its petition the owner urged that Ms Bershen's initial rent should have 
     been computed on the basis of Ms Kronick's last  rent  of  $416.79  rather
     than the prior rent of $356.23 because here lease and Ms  Kronick's  lease
     became effective in different Guideline periods.

     On February 224, 1989 the Commissioner issued an order and opinion  which,
     in substance, accepted the owner's arguments, granted the petitio in  part
     and recomputed overcharges in the amount of $814.44,  including  interest,
     through September 31, 1988.








          DOCKET NUMBER: BL 410233-RO
     Subsequently, on May 10, 1989, the Commissioner issued an order  reopening
     the proceedings based on findings  that  the  tenant  had  sent  a  letter
     containing material allegations to the Administrator on November  9,  1987
     which letter did not reach the  record  until  after  the  Administrator's
     herein appealed order of November 12,  1987  had  been  issued  but  which
     should have been considered on appeal  even  though  the  tenant  did  not
     herself file a petition or otherwise respond to the owner's petition.

     Said letter, in substance, urges that treble damages are  warranted;  that
     Ms Kronick's September 1, 1981 lease (or lease renewal) must be fraudulent 
     because it was purportedly signed on August 5, 1981 but she  (Ms  Bershen)
     had been shown the apartment on September 10, 1981 at which  time  it  had
     obviously been recently extensively repaired and renovated which could not 
     have occurred if anyone had been in occupancy in September; that  she  was
     advised by tenants in nearby apartments that the apartment had been vacant 
     for a considerable time before she took occupancy  in  October  1981;  and
     that the Stabilization Rider attached to her initial  lease  recited  that
     the prior tenant was one De., Kronick whose last rent was $356.23.

     The owner was served with  copies  of  the  abovenoted  letter  and  other
     documentation and responded, in substance, that the tenant  had  submitted
     no substantial evidence in support of her allegations;  that  it  acquired
     the building only after the tenant's complaint had been filed and  had  no
     part in any transactions between the prior owner  and  Ms  Kronick  or  Ms
     Bershen's initial tenancy; that its own conduct has been proper; and  that
     it should not be liable for treble damages.

     The Commissioner after reconsideration after reopening, is of the  opinion
     that the prior order and  opinion  should  be  revoked  and  the  petition
     denied.

     The Commissioner notes that, since his proceeding  was  properly  reopened
     based on an irregularity in a vital matter in that material  evidence  had
     that been previously considered, it is proper to now reconsider the matter 
     in its entirety.

     The Commissioner is of the opinion that the Administrator was  correct  in
     refusing, in computing the complainant tenant's initial rent, to  consider
     the last lease of the prior tenant since that tenant had been in occupancy 
     (if at all) less than 3 months of the lease term, even though 2  different
     Guideline periods were involved, and since the Stabilization Rider to  the
     complainant tenant's initial lease did not recite that last rent.   Accord
     AK 410186-RO; BK 110266-RO (SJR 2757); CG 110199-RT.

     It is, therefore,  not  necessary  in  this  proceeding  to  pass  on  the
     genuiness of the prior tenant's last lease.

     However, the Commissioner is further of the opinion that it would  not  be
     proper to now impose treble damages since the tenant  did  not,  in  fact,
     file a petition.

     If the owner, in reliance on the Commissioner's prior order  and  opinion,
     has collected any rent in excess of that permitted by the  Administrator's
     order, it shall refund or credit same to the  tenant  by  the  first  rent
     payment date that occurs after 30 days from the date of issuance hereof.







          DOCKET NUMBER: BL 410233-RO
     The affirmance of the Administrator's order infra includes the  provisions
     for filing as a judgment or withholding rent after the expiration  of  the
     period in which the owner may seek judicial review of this order.

     THEREFORE, pursuant to the Rent Stabilization Law and Code, it is

     ORDERED, that the Commissioner's prior order and opinion of  February  24,
     1989 be, and the same hereby is, revoked; that this petition be,  and  the
     same hereby is, denied; and the order of the Rent  Administrator  be,  and
     the same hereby is affirmed.

     ISSUED:










                                                                   
                                            ELLIOT SANDER
                                          Deputy Commissioner




                                                   
    

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