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

          APPEAL OF                              DOCKET NO.  BL410247RO 
                                              :  DRO DOCKET NO.61366G
                                                 TENANT: RANDY GOFF
                                PETITIONER    : 


               On  December 1, 1987, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on       
          October 27, 1987, by the Rent Administrator, 92-31 Union Hall 
          Street, Jamaica, New York, concerning the housing accommodations 
          known as 26 East 13th Street, New York, NY, apartment no. 3H,       
          wherein the Administrator determined that the owner had overcharged 
          the tenant. 

               The Commissioner notes that this proceeding  was initiated 
          prior to April 1, l984.  Sections 2526.1(a) 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 Rent Administrator's 
          order was warranted.  

               The applicable section of the Law is Section 42A of the former 
          Rent Stabilization Code.

               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.  

               On March 13, 1984 the Attorney General of the State of New York 
          and the owner herein executed an Assurance of Discontinuance wherein 
          the owner agreed to review and to submit to the Attorney General 


          rental histories for rent stabilized apartments in the subject 
          premises (including the subject apartment herein) and to refund any 
          rent overcharges.  

               The owner was served with a copy of the tenant's rent 
          overcharge complaint and was directed to submit a complete rental 
          history for the subject apartment from the base date including 
          copies of all leases.  

               In response, the owner did not submit the required leases but 
          referenced the Assurance of Discontinuance of March 13, 1984 and 
          submitted a copy of said Assurance and a "Review of Rent History" in 
          which it listed the rental history for the subject apartment from 
          the base date. 
               In Order Number CDR 31,688, the Administrator determined that, 
          due to the owner's failure to submit a complete rental history, the 
          owner had collected a rent overcharge of $15,662.96, including 
          excess security and interest on that portion of the overcharge 
          occurring on or after April 1, l984 and directed the owner to refund 
          the overcharge to the tenant.  
               In this petition, the owner contends in substance that the DHCR 
          is bound by the Assurance of Discontinuance and therefore, the Rent 
          Administrator should not have issued the order appealed herein.
          The owner further contends that the Administrator made a computing 
          error in the rent calculation chart, finding a three year lease 
          commencing  October 1, 1985 at a rent of $725.19 instead of a two 
          year lease at $725.16.  The owner submitted a copy of the two year 
          lease in support of its contention.

               In a supplementary response, the owner contends that since the 
          subject building  was formerly used for commercial purposes and was 
          not converted to residential use until after January 1, 1974, the 
          premises are not subject to the Rent Stabilization Law.  

               The tenant did not respond to the petition.  

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

               Section 2(f)(8) of the former Rent Stabilization Code included 
          within its jurisdiction those dwelling units which "are subject to 
          regulation solely as a condition of receiving or continuing to 
          receive benefits pursuant to Section 51 - 2.5  of the Administrative 
          Code of the City of New York, as amended by Local Law 60.

               Review of the record reveals that the owner herein was a 
          participant in the J51 program and that the instant apartment was 
          receiving J51 tax benefits for the time period at issue in the 
          Administrator's order.  Accordingly, the Commissioner finds that the 
          subject apartment was within the jurisdiction of the Rent 
          Stabilization Law.

               Section 42A of the former Rent Stabilization Code provides in 
          pertinent part that the owner is required to retain all leases of a 
          dwelling unit from its base date and to produce them on demand for 


          as long as the dwelling remains subject to Rent Stabilization.  

               In the instant case, the owner did not submit the required 
          leases although given several opportunities to do so.  The 
          Commissioner is of the opinion that the Assurance of Discontinuance 
          executed by the owner and the Attorney General does not preclude the 
          DHCR from determining a rent overcharge case brought before it.  The 
          DHCR has primary jurisdiction to decide such cases.  Moreover, in 
          the Assurance of Discontinuance, the lawful stabilization rent for 
          the subject apartment herein was not determined and it was noted on 
          p. 13 of such Assurance that "it is further agreed by respondent 
          that nothing in this Assurance of Discontinuance may be construed to 
          deprive any tenant of pursuing any right such tenant may have in a 
          court of competent jurisdiction or before the Conciliation and 
          Appeals Board or its successor agency".  Accordingly, that part of 
          the Administrator's order was warranted.  
               With respect to the alleged error in the rent calculation 
          chart, the Commissioner notes that the owner did not submit any 
          evidence in the proceeding before the Administrator as to the rent 
          collected or the pertinent lease term which contradicts the tenant's 
          statement that there was a three year lease at a rent of $725.19.
          However, because the owner was relying on the Assurance of 
          Discontinuance and did submit a copy of the lease on appeal and 
          because Rent Guidelines No. 17 does not provide for three year lease 
          terms, the Commissioner corrects the error and deducts $.03 per 
          month for the 25 months covered in the rent calculation chart or 
          $.75.  Since the record indicates that the tenant has vacated the 
          premises, the excess security ($212.97) is also deducted from the 
          ordered refund.  Accordingly, the owner is directed to refund to the 
          tenant an overcharge of $15,449.24. 
               The record indicates that the tenant has vacated the subject 
          apartment and that said apartment is exempt from rent stabilization 
          by reason of the expiration of J51 benefits. 
               Accordingly, a copy of this order is being sent to the tenant 
          at his last known address and to his attorney.

               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, this order may be filed and enforced in the same 
          manner as a judgment.  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 
          Administrastor's order to the issuance date of the Commissioner's 

               Therefore, in accordance with the provisions of the Rent 
          Stabilization Law and Code, it
               Ordered that this petition be, and the same hereby is, granted 
          in part, and the Rent Administrator's order be, and the same hereby 
          is, modified in accordance with this order and opinion.     



                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner






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