CB 410070 RO
                            STATE OF NEW YORK
                          OFFICE OF RENT ADMINISTRATION
                                   GERTZ PLAZA
                             92-31 UNION HALL STREET
                             JAMAICA, NEW YORK 11433

      APPEAL OF                              DOCKET NO. CB 410070 RO

                                          :  DISTRICT RENT OFFICE
           Dowarp Realty c/o                 DOCKET NO. L 3111092-R

                               PETITIONER : 


      On February 24, 1988, the above-named petitioner-owner filed a Petition 
      for Administrative Review against an order issued on January 20, 1988, 
      by the Rent Administrator concerning the housing accommodations known 
      as 408 West 51st Street, New York,  New York, Apartment No. 104, 
      wherein the Rent Administrator determined that the owner had 
      overcharged the tenant.

      The administrative appeal is being determined pursuant to the 
      provisions of Section 2526.1 of the Rent Stabilization Code.

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

      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 in March 1984 of 
      a rent overcharge complaint by the tenant with the New York City 
      Conciliation and Appeals Board, one of the predecessor agencies to the 
      DHCR.  The tenant took occupancy pursuant to a lease commencing 
      November 1, 1982 and expiring October 31, 1983, at a monthly rent of 

      The owner was served with a copy of the complaint and was requested to 
      submit rent records to prove the lawfulness of the rent being charged.

      In answer to the tenant's complaint, the owner stated in substance that 
      it was unable to establish the base rent date for the subject apartment 

          CB 410070 RO

      and required the opportunity to examine DHCR records.  In addition, the 
      owner submitted photocopies of leases from March 1, 1979 through 
      October 31, 1988.

      In Order Number CDR 32,376, the Rent Administrator determined that due 
      to the owner's failure to submit a complete rental history, the tenant 
      had been overcharged in the amount of $22,964.51, including interest, 
      on the overcharge occurring on and after April 1, 1984, and directed 
      the owner to refund such overcharge to the tenant as well as to reduce 
      the rent.

      In this petition, the owner contends that it was not provided with 
      requested rent control documentation in the DHCR's possession which 
      could have established the base rent date for the apartment; that the 
      failure of the DHCR to provide access to the requested data severely 
      prejudiced the owner, and that, therefore, the determination was 
      improperly based on an arbitrary application of the three-pronged test.

      In answer to the owner's petition, the tenant states in substance that 
      the owner filed its petition late; that she never received a copy of 
      the owner's answer to her complaint; and that she believes that that 
      answer was not timely filed.

      The Commissioner finds that the petitioner has defaulted in providing 
      a complete rental history, and has not, despite ample opportunity, 
      provided an adequate explanation for said default.  Accordingly, the 
      order of the Administrator should be affirmed.

      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) and to produce such records to the DHCR upon 

      Rent Control records indicate that on March 22, 1978 the subject 
      apartment was decontrolled.  The owner submitted leases only from March 
      1979 forward.  The burden of proof is upon the owner to retain complete 
      records from the base date and to produce them to the DHCR upon demand.  
      The Commissioner finds that the owner was not prejudiced by the failure 
      of the Division to provide it with the date of decontrol.  That 
      contention lacks substance, particularly since, by the owner's own 
      testimony, all available records were submitted, and a complete rental 
      history from the date of decontrol, including the first stabilized 
      lease, has not been submitted.  Since the owner has not complied with 
      Section 42A, and is in default, the Administrator properly utilized the 
      default procedure to establish the lawful stabilized rent.

      Based on the foregoing, a total overcharge of $22,964.51 occurred from 
      November 1, 1982 to January 31, 1988, including interest on the 
      overcharge occurring on and after April 1, 1984 and excess security.

          CB 410070 RO

      Because this determination concerns lawful rents only through     
      January 31, 1988, 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, affirmed.


                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner


          CB 410070 RO


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