DOCKET NO.:  CA710116RT
                                     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. CA710116RT
                                           :   DISTRICT RENT ADMINISTRATOR'S
                 THELMA DYER,                  DOCKET NO. 2987, Examining Unit
                            PETITIONER     :   
     --------------------------------------X      


        ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART


     The above-named tenant filed a timely petition for administrative review of 
     an order issued concerning the housing accommodations known as 299 Jackson 
     Street, Apt. 19E, Hempstead, New York.

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

     The tenant commenced this proceeding on April 20, 1984 by filing an Objection 
     to the 1984 Registration Statement for the subject apartment.  The tenant 
     complained, inter alia, that her April, 1984 rent was $328.16.  According to 
     the Registration Statement, the monthly rent was $392.00.  The tenant 
     referred to a "mutual agreement" by which the monthly rent would be reduced 
     by $28.00 per month in consideration of the tenant's paying directly for her 
     own electricity.  The tenant also submitted a copy of the May 1, 1982 - April 
     30, 1983 lease which stated the monthly rent at $350.00 per month for that 
     term.  The tenant stated that her then prior rent was $300.00 per month.

     On November 25, 1985 the owner filed an answer to the tenant's Objection.
     The owner stated that DRO# HEMPTA 83-578 ordered the owner to reduce the 
     Legal Regulated Rent (LRR) from $350.00 per month to $318.00 per month for 
     the tenant's initial May 1, 1982 lease and that the owner was complying, even 
     though it had filed an Article 78 proceeding against that order.  The owner 
     asked that the tenant's complaint be set aside pending resolution of the 
     Article 78 Proceeding.

     Pursuant to the Administrator's request, the owner supplied additional 
     information on December 14, 1987.  This information included a copy of 
     Administrator's order HEMPTA 83-578, issued November 18, 1983.  That Order 
     was issued pursuant to the filing of an Application for Adjustment of Initial 
     Legal Regulated Rent by the tenant herein against the owner concerning the 
     subject premises.  In that order the Administrator found that the applicable 
     special guideline increase to determine the fair market initial rent for  
     apartments in Hempstead after that Village first adopted the ETPA for a one- 
     year lease was 6%.  See Section 9.b of ETPA (codified as Section 8629.b in 
     McKinney's Unconsolidated Laws).  Therefore the May 1, 1982 increase from 
     $300.00 to $350.00 was reduced to $318.00.  As noted above, the owner 






          DOCKET NO.:  CA710116RT

     previously indicated that it was in compliance with this order.  The owner 
     also supplied the Administrator with copies of various leases and lease 
     renewal agreements.  Among these documents were the May 1, 1983 - April 30, 
     1986 lease and lease renewal agreement which both gave the LRR as $392.00 per 
     month and the May 1, 1986 - April 30, 1988 lease renewal agreement, which 
     raised the LRR from $366.70 to $390.54 for the term of the lease.  Thus, it 
     appears the owner had adjusted the 1983-86 rent from $392.00 to $366.70.

     On December 24, 1987 the Administrator issued the order herein under review.  
     In the order the Administrator found that the owner had willfully overcharged 
     the tenant since May 1, 1983 and therefore the owner was liable for treble 
     damages.  The Administrator prepared a rent calculation chart, finding that 
     the May 1, 1986 - April 30, 1988 rent was $379.31 per month, as opposed to 
     the $390.54 indicated by the lease renewal agreement.

     On January 12, 1988 the tenant filed this petition for administrative review 
     (PAR).  In the PAR the tenant argues that the Administrator's order 
     disregards the effects of the Administrator's order HEMPLD83-1/11 (issued 
     February 22, 1984).  In that order, the Administrator had found that due to 
     the owner's rewiring of the electricity in the subject building from the 
     master meter to individual meters, the tenant assumed financial responsibili 
     ty for the electricity used in her apartment.  The Administrator in the 
     February 22, 1984 order had determined the subject tenant (identical to the 
     tenant in the present case) used approximately $28.00 worth of electricity 
     each month.  The tenant also attached a copy of Administrator's order NHEMP 
     86CS457RV, concerning the identical parties (issued December 16, 1986), which 
     mandated the percentage increases the owner was entitled to for various terms 
     of a lease renewal.  The tenant wrote various objections to the order on its 
     face.  

     The Commissioner is of the opinion that this petition should be granted in 
     part, and that the Administrator's order should be modified.

     The Rent Calculation Chart included in Docket Number 2987 reports the lawful 
     stabilized rent for May 1, 1983 - April 30, 1986 (the period during which the 
     tenant filed her complaint) as $356.16 ($318.00 per month, the previous 
     lawful rent, plus a 12% allowable guideline increase for a 3-year lease.)  In 
     her complaint, the tenant stated that the 1983 - 1986 rent was $356.16 before 
     the adjustment for electricity.  The Commissioner finds that the tenant's 
     objections to NHEMP86CS457RV, as stated at PAR, constitute a collateral 
     attack on another order besides the one being appealed.  Therefore, those 
     objections are beyond the scope of review.

     It is undisputed that the tenant's rent was reduced by $28.00 per month by 
     the February 22,1984 order.  Therefore, Order Number 2987, Examining Unit, is 
     hereby modified to reflect that reduction.  The Commissioner notes that, in 
     a letter dated January 8, 1983 the tenant stated that she had accepted an 
     apparently partial repayment of the overcharge.  The Commissioner similarly 
     notes that the same tenant, who filed the Objection to the 1984 Registration 
     Statement has, since the commencement of the instant proceeding vacated the 
     subject apartment.

     The owner is directed to refund to the tenant any and all excess rents in 
     amounts greater than the legal rent indicated by this order (plus any legal 
     increases) paid to the owner.  If the tenant is unable to collect the 
     overcharges from the owner, the tenant may then file a complaint of Rent 
     Overcharge with this agency.



          DOCKET NO.:  CA710116RT

     THEREFORE, in accordance with the provisions of the Tenant Protection 
     Regulations, it is 

     ORDERED, that this petition be, and the same hereby is, granted to the extent 
     that Order Number 2987, Examining Unit, is hereby modified to show that the 
     October 1, 1983 rent was $328.16, rather than the $356.16 used by the 
     Administrator.  Subsequent rents should be computed from this figure.

     ISSUED:


                                                                               
                                                     JOSEPH A. D'AGOSTA
                                                     Deputy Commissioner
        




    

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