CA 110142 RO

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

          APPEAL OF                             DOCKET NO.: CA 110142 RO

                                                DRO DOCKET NO.: L 3114649 R
                                                CDR 29,909

                                                TENANT: BRUCE MACRAE          


          On January 8, 1988, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on April 
          15, 1987, by the Rent Administrator, 10 Columbus Circle, New York, 
          New York, concerning the housing accommodations known as 401 East 
          88th Street, New York, New York, Apartment No. 6E, wherein the Rent 
          Administrator determined that the owner had overcharged the tenant.

          The current owner stated that it received a partial copy of the 
          order appealed herein from the tenant on January 4, 1988 but was 
          never served a copy of the order by the Division of Housing and 
          Community Renewal (DHCR) in April 1987.

          A review of the record discloses that the order was addressed to 
          Delaware Management Company, Inc. however the owner in 
          correspondence in the file and in the 1986-87 registration was 
          listed as Dewar Management Company.

          Taking the aforementioned into account, the Commissioner deems the 
          owner's filing of a Petition for Administrative Review on January 
          8, 1988 as timely.

          The Commissioner notes that this proceeding was initiated 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 Administrative Appeal is being determined pursuant to the 
          provisions of Section 42A of the Rent Stabilization Code.

          The issue herein is whether the Rent Administrator's order was 

          CA 110142 RO

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

          This proceeding was originally commenced by the filing in March 
          1984 of a rent overcharge complaint by the tenant.

          In response to the tenant's complaint, the owner stated in 
          substance that they had no leases prior to the complainant's 
          November 1975 vacancy lease but submitted a rent ledger from 
          September 1, 1974 through December 1974.

          In Order Number 29,909, the Rent Administrator determined that due 
          to the owner's failure to submit a complete rental history, the 
          owner had collected a rent overcharge of $8,233.38 including 
          interest on that portion of the overcharge occurring on and after 
          April 1, 1984.

          In this petition, the owner contends in substance that there is new 
          evidence which does provide a full rent history.  The owner 
          submitted a copy of the rent ledger for the subject apartment from 
          January 1974 through June 1974.

          Further, the owner stated that on May 13, 1983, the Attorney 
          General had executed an assurance of discontinuance wherein the 
          owner had submitted a complete rental history to the Attorney's 
          General's Office and therefore the DHCR should not have continued 
          to process the complaint or accepted the Attorney General's 
          findings of no overcharge based on the rent histories approved by 
          the Attorney General.

          In answer to the owner's petition, the tenant stated in substance 
          that the owner asserted that it only had rental history from 
          September 1974 and should not be allowed to submit the new evidence 
          on appeal.  The owner did not explain why the rental history could 
          not be submitted to the Rent Administrator and the tenant, 
          therefore, questions the authenticity of the new evidence.

          The Commissioner is of the opinion that this petition should be 

          Section 42A of the Rent Stabilization Code requires that an owner 
          retain complete records for each stabilized apartment in effect 
          from June 30, 1974 to date and produce them to the DHCR upon 
          demand.  If the apartment was decontrolled from the Rent Control 
          Law after June 30, 1974, the owner must provide satisfactory 
          documentary evidence of the apartment's date of decontrol and 
          submit a rental history from that date.

          In the instant case, the owner had not provided a complete rental 
          history as mandated by Section 42A in the proceeding before the 
          Rent Administrator although afforded an opportunity to do so and 
          has not submitted a reasonable excuse for it's failure to do so on 
          appeal.  Since this is not a de novo proceeding, the owner's new 
          submission of rent ledgers cannot be considered for the first time 
          on appeal.  The owner never raised the issue of the Attorney 
          Generals's Assurance of Discontinuance before the Rent 

          CA 110142 RO

          Administrator so that this issue too cannot properly be considered 
          for the first time on appeal.

          Further, the Commissioner finds that the Division is not estopped 
          from exercising its expertise and determining the lawful regulated 
          rent for the subject apartment from the base date by virtue of an  
          Assurance of Discontinuance between the owner and the Attorney 

          Accordingly, the Rent Administrator's order establishing the lawful 
          stabilization rent utilizing the Section 42A default procedure and 
          finding a rent overcharge was warranted.

          Because this determination concerns lawful rents only through March 
          31, 1987, the owner is cautioned to adjust subsequent rents to an 
          amount no greater than that determined by the Rent Administrator's 
          order plus any lawful increases, and to register any adjusted rents 
          with this order and opinion being given as the explanation for the 

          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, denied, and, that the order of the Rent 
          Administrator be, and the same hereby is, modified to list the 
          owner as Dewar Management Company.  In all other respects, the Rent 
          Administrator's order is affirmed.


                                          JOSEPH A. D'AGOSTA
                                          Acting Deputy Commissioner


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