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.: CC 210463-RO
                                          :  
          ERNEST JERMIAS                     RENT ADMINISTRATOR'S
                                             DOCKET NO.: ZK 002112-R
                            PETITIONER    : 
      ------------------------------------X  Tenant: Fred & Jeanette Schulman

            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

      On March 15, 1988, the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on February 23, 1988 by the 
      Rent Administrator, 92-31 Union Hall Street, Jamaica, New York concerning 
      the housing accommodation known as 2302 85th Street, Apartment 6C, 
      Brooklyn, New York wherein the Administrator determined that an overcharge 
      had occurred and directed the owner to refund $17,519 inclusive of excess 
      security and treble damages.

      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 on May 31, 1985 of 
      a rent overcharge complaint by the tenants.

      In response to the complaint the owner asserted that there was no 
      overcharge and submitted a set of leases, executed by various prior tenants 
      of the subject apartment, dated March 1, 1980 through December 1984 which 
      indicated that the apartment had previously been rented for a higher rental 
      than that being paid by the complainant.

      In reply, the tenants alleged that the owner had submitted fictitious 
      leases.  As proof that only one tenant, Mr & Mrs. Norato, not the multiple 
      tenants alleged by the owner had resided in the subject apartment during 
      the relevant time period, the tenant submitted a number of documents that 
      directly contradicted the owner's submission, including:

           1) the prior tenant's rent receipts;
           2) notarized statements by eight neighbors attesting to the
              sole tenancy alleged by the complaint;
           3) Flatbush Tenants' Council receipt for 1984 membership dues;
           4) 1983 tenants' complaint signed by N. Norato as tenant
              representative.

      Division of Housing and Community Renewal records disclose that a copy of 
      the tenants' reply was served on the owner on November 16, 1987 and that 
      the owner did not respond on its merits to the tenants' reply.









          ADMIN. REVIEW DOCKET NO.: CC 210463-RO




      In the order here under review, finding that the evidence regarding the 
      April 1, 1984 rent and the tenant of record as submitted by the owner and 
      by the tenant was in conflict, and examining this agency's own records, the 

      Administrator determined that the tenant had been overcharged and directed 
      the owner to refund to the tenant $17,519.16 inclusive of excess security 
      and treble damages.

      In his petition, the owner contends that there is no overcharge and that 
      the order should be reversed.

      In support of his contention, the owner resubmits copies of the documents 
      he had submitted in the proceeding below, the 1984 apartment registration, 
      and three leases which name three different tenants covering the period 
      March 1, 1980 through November 30, 1984.

      In answer to the owner's petition, the tenants contend that the leases 
      submitted by the owner are false and supports this contention by reference 
      to the evidence in the record.  The tenants further contend that utility 
      records subpoenaed by the Enforcement Bureau in a different proceeding 
      verify the contention with respect to the prior tenancy.

      After careful consideration, the Commissioner is of the opinion that this 
      petition should be denied.

      At the outset, the Commissioner notes that the owner does not allege any 
      errors of fact or of law in the Administrator's order but merely resubmits 
      the documents previously submitted.  As was noted in the rent calculation 
      chart, the owner and the tenant submitted conflicting evidence regarding 
      the April 1, 1984 rent and the tenant of record.  However, the owner fails 
      to address or clarify the conflict in his appeal.  Moreover, the owner 
      fails to take cognizance of the disparity between the 1984 apartment 
      registration which conforms to the evidence submitted by the tenant, as 
      filed with the agency in May 1984 and the registration copy submitted as 
      evidence in this proceeding.  Balancing the tenant's claims against the 
      owner's claims, the Commissioner finds that a preponderance of the evidence 
      shows that the documents submitted by the owner are not credible.  
      Moreover, evidence i.e. utility records from Brooklyn Union Gas and Con 
      Edison, adduced at a hearing held in 1989 at the DHCR Enforcement Bureau 
      shows that the tenant in occupancy of the subject apartment from 1975 
      through December 1984 was Norato (exhibits C84 and C104).  In the totality 
      of the circumstances, the Administrator correctly relied upon the filed 
      version of the 1984 apartment registration to determine the legal 
      stabilization rent and upon the evidence submitted by the tenants.

      The owner is directed to reflect the findings and determinations made in 
      the Rent Administrator's order on all future registration statements, 
      including those for the current year if not already filed, citing this 
      Order as the basis for the change.  Registration statements already on 
      file, however, should not be amended to reflect the findings and 
      determinations made in the Rent Administrator's order.  The owner is 



          ADMIN. REVIEW DOCKET NO.: CC 210463-RO




      further directed to adust subsequent rents to an amount no greater than 
      that determined by the Rent Administrator's order plus any lawful increase.

      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 forty percent per month thereof 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:








                                                                    
                                           JOSEPH A. D'AGOSTA
                                       Acting Deputy Commissioner





    

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