DOC, NO.: CA 410130-RO
                                 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.: CA 410130-RO
                        TUBA REALTY,         :   DRO ORDER NO.:
                                 PETITIONER  :              CDR 32,073
         ------------------------------------X   TENANT: DANA L. WILNER


             ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


         On January 12, 1988, the above named petitioner-owner filed a Petition 
         for Administrative Review against an order issued on December 8, 1987, 
         by the Rent Administrator, 10 Columbus Circle, New York, New York, 
         concerning housing accommodations known as Apartment Number 17, 435 
         East 12th Street, New York, New York, wherein the Rent Administrator 
         determined that there had been an overcharge and ordered a refund of 
         $16,995.15, including interest and excess security.

         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 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.

         The tenant commenced this proceeding on March 31, 1984 by filing an 
         overcharge complaint with the New York City Conciliation and Appeals 
         Board, predecessor of the DHCR, based in part on an alleged failure by 
         the owner to provide a complete rental history.  The tenant alleged 
         having commenced occupancy on August 10, 1980 at a monthly rental of 
         $275.00.




















         DOC. NO.: CA 410130-RO


         In an answer to the complaint received December 19, 1984, the owner 
         stated that the base rent for the apartment was April 11, 1975 when 
         the prior tenant took occupancy as the first stabilized tenant at 
         $172.00 per month.  The owner submitted copies of leases for that 
         tenant from April 11, 1975 to an April 1, 1980 lease at $227.00 per 
         month.  The owner stated that "it appears from the records we received 
         upon purchase that the prior owner followed applicable guidelines.  
         [We] certainly did."

         All the leases submitted by the owner were for Apartment 18 rather 
         than 17.

         In Order Number CDR  32,073, herein under review, the Rent 
         Administrator stated that the owner had only submitted prior leases 
         for apartment 18 and was therefore in default with respect to subject 
         apartment 17.  The lawful stabilized rent was established as $184.72 
         as of August 1, 1987.

         In this petition, the owner contends that the Rent Administrator's 
         Order is incorrect and should be modified because the 

                   "order ignores the fact that the prior tenant was 
                   rent stabilized and that five (5) leases were 
                   entered into with her.  The first lease (copy 
                   attached) was dated April 1, 1975 and was for a 
                   rent of $172.00.  It can therefore be assumed 
                   that this was the first stabilized tenant and 
                   that the unit was decontrolled sometime between 
                   July 1, 1974 and April 1, 1975.  (Emphasis 
                   added.)

                   "The MBR records which are on file with DHCR 
                   would substantiate this fact in probability.  
                   These are records DHCR has in its possession and 
                   it must consider them."

         The leases submitted on appeal are the same Apartment 18 leases that 
         the Administrator explicitly rejected in the order under appeal.  The 
         petitioner offers no justification for this discrepancy.

         In answer to the petition, the tenant argues that the Administrator's 
         order should be upheld, because the owner has "ignored" the 
         Administrator by resubmitting the Apartment 18 leases.  The tenant 
         contends the owner's failure to submit leases for apartment 17 
         indicates that the owner does not have them or that the leases would 
         demonstrate an even larger overcharge than found by the Administrator.



         In addition, the tenant challenges that owner's statement that Lucy 
         Roman (the tenant in the Apartment 18 leases) was the first stabilized 




         DOC. NO.: CA 410130-RO

         tenant, the tenant notes that she previously had submitted signed 
         statements from two prior tenants of Apartment 17, Brian Ruonavaara 
         and William Cleaver, stating that they had occupied Apartment 17 at 
         monthly rentals of $98.00 and $105.00 for the periods September, 1973 
         to October, 1975 and late 1975 to December, 1977, respectively, 
         contradicting both the rental history and the occupant history alleged 
         by the owner.

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

         Section 42A of the former Rent Stabilization Code requires that an 
         owner retain complete records for each stabilized apartment in effect 
         from June 30, 1974 (or the date the apartment became subject to rent 
         stabilization, if later) to date and to produce such records to the 
         DHCR upon demand.

         Section 26-516 of the Rent Stabilization Law, effective April 1, 1984, 
         limited an owner's obligation to provide rent records by providing 
         that an owner may not be required to maintain or produce rent records 
         for more than four years prior to the most recent registration, and 
         concomitantly, established a four year limitation on the calculation 
         of rent overcharges.

         It has been the DHCR's policy  that overcharge complaints filed prior 
         to April 1, 1984 are to be processed pursuant to the law or Code in 
         effect on March 31, 1984. (See Section 2526.1(a)(4) of the current 
         Rent Stabilization Code.) The DHCR has therefore applied Section 42A 
         of the former Code to overcharge complaints filed prior to April 1, 
         1984, requiring complete rent records in these cases.  In following 
         this policy, the DHCR has sought to be consistent with the legislative 
         intent of the Omnibus Housing Act (Chapter 403, Laws of 1983), as 
         implemented by the New York City Conciliation and Appeals Board (CAB), 
         the predecessor agency to the DHCR, to determine rent overcharge 
         complaints filed with the CAB prior to April 1, 1984 by applying the 
         law in effect at the time such complaints were filed so as not to 
         deprive such tenants of their right to have the lawful stabilized rent 
         determined from the June 30, 1974 base date and so as not to deprive 
         tenants whose overcharge claims accrued more than four years prior to 
         April 1, 1984 of their right to recover such overcharges.  In such 
         cases, if the owner failed to produce the required rent records, the 
         lawful stabilized rent would be determined pursuant to the default 
         procedure approved by the Court of Appeals in 61 Jane Street 
         Associates v. CAB, 65 N.Y.2d 898, 493 N.Y.S.2d 455 (1985).




         However, it has recently been held in the case of J.R.D. Mgt. v. 
         Eimicke, 148 A.D.2d 610, 539 N.Y.S.2d 667 (App. Div. 2d Dep't 1989), 
         motion for leave to reargue or for leave to appeal to the Court of 
         Appeals denied (App. Div. 2d Dep't, N.Y.L.J., June 28, 1989, p.25, 












         DOC. NO.: CA 410130-RO

         col.1), motion for leave to appeal to the Court of Appeals denied 
         (Court of Appeals, N.Y.L.J., Nov. 24, 1989, p. 24, col. 4)., motion
         for leave to reargue denied (Court of Appeals, N.Y.L.J., Feb. 15, 
         1990, p. 25, col. 1), that the law in effect at the time of the 
         determination of the administrative complaint rather than the law in 
         effect at the time of the filing of the complaint must be applied and 
         that the DHCR could not require an owner to produce more than four 
         years of rent records.

         Since the issuance of the decision in JRD, the Appellate Division, 
         First Department, in the case of Lavanant v. DHCR, 148 A.D.2d 185, 544 
         N.Y.S.2d 331 (App. Div. 1st Dep't 1989), has issued a decision in 
         direct conflict with the holding in JRD.  The Lavanant court expressly 
         rejected the JRD ruling, finding that the DHCR may properly require an 
         owner to submit complete rent records, rather than records for just 
         four years, and that such requirement is both rational and supported 
         by the law and legislative history of the Omnibus Housing Act.

         Since in the instant proceeding the subject dwelling unit is located 
         in the First Department, the Division will follow the Lavanant 
         decision which upheld the default procedure utilized in this case.  
         However, the Commissioner notes that since the owner has failed to 
         provide leases prior to August, 1980 it remains in default even under 
         the JRD standard.

         In short, all the prior leases submitted by the owner were for the 
         wrong apartment.  The Administrator's order stated this fact 
         explicitly.  On appeal the owner again submits the same leases without 
         explanation.  Accordingly, the owner was and remains in default.  The 
         Commissioner notes that a search of the Rent Control records for the 
         apartment yielded the following:  The most recent entry in the Rent 
         Control registration cards shows a 1968 maximum rent of $70.15.  The 
         most recent Maximum Base Rent order, effective April 1, 1976 shows a 
         Maximum Collectible Rent and $93.69 and a Maximum Base Rent of 
         $100.72.  The named tenants therein being different from the prior 
         tenants named by either the owner or the complaining tenant.  There is 
         no Landlord's Report of Statutory Decontrol (R-42 form) or any other 
         indication of when the apartment first became stabilized.  Thus, 
         nothing in the Division records supports the owner's contentions or









         indicates any error in the Administrator's finding of default.  The 
         burden is on the owner to prove the base date for stabilization.   The 
         owner has clearly not met this burden.





         DOC. NO.: CA 410130-RO

         This order may, upon the expiration of the period in which the owner 
         may institute a proceeding pursuant to Article Seventy-Eight of the 
         Civil Practice Law and Rules, be filed and enforced by the tenant in 
         the same manner as a judgment or not in excess of twenty percent 
         thereof per month 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:

                                                                               
                                                                              
                                                 ELLIOT SANDER
                                                 Deputy Commissioner


           








    

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