CI 410080 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  SJR No: 6358
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NO. CI 410080 RO

                                          :  DISTRICT RENT ADMINISTRATOR'S
           JNPJC Brusco Associates,          DOCKET NO. 021153
                                             
                                             TENANT: Harriet Miller       

                            PETITIONER    : 
      ------------------------------------X                             

          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                                     IN PART


      On September 26, 1988, the above-named current owner filed a petition 
      for administrative review of an order issued on February 23, 1988, by a 
      District Rent Administrator concerning the housing accommodations known 
      as 203 West 85th Street, New York, New York, Apartment No. 33, wherein 
      the Rent Administrator determined that the owner had collected excess 
      rent.

      Subsequently, the tenant filed a petition in the Supreme Court in the 
      nature of mandamus pursuant to Article 78 of the Civil Practice Law and 
      Rules for a judgment directing the DHCR to render a determination of the 
      petitioner's administrative appeal. 

      By stipulation dated May 29, 1992, the court proceeding was withdrawn on 
      condition that the Division of Housing and Community Renewal (DHCR) 
      render a determination of the owner's petition for administrative review 
      within 120 days of May 29, 1992.

      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 commenced on July 30, 1984 upon the filing of a 
      tenant's objection to registration.  The tenant requested both a fair 
      market rent appeal and an overcharge inquiry.  In addition the tenant 
      questioned the room count shown on the registration form.  The form 
      listed the subject unit as having 3 rooms and the tenant stated that it 
      was a 1 room apartment. 


      The tenant's complaint was served on the prior owner.  In its answer, 












          CI 410080 RO

      the prior owner alleged that the tenant was precluded from filing a fair 
      market rent appeal because she was not the first stabilized tenant.  
      Also, the prior owner acknowledged that based on the definition of a 
      room used by the DHCR, the subject apartment was a one room apartment 
      and not a three room apartment as indicated on the registration form.  
      Finally, the prior owner addressed the overcharge complaint and alleged 
      that no overcharge occurred.

      In the order here under review, the Administrator determined that this 
      case should be processed as a fair market rent appeal based on the prior 
      owner's failure to produce proof that the first rent stabilized tenant 
      was served with the DC-2 form.  Because the prior owner had submitted no 
      comparables, the Administrator, by using only the special guidelines, 
      determined the fair market rent to be $172.72 effective January 17, 1980 
      and that the excess rents collected totalled $10,416.18.  The 
      Administrator also ordered that the registration be amended to reflect 
      the fact that the subject apartment contains one room.

      In the petition for administrative review, the current owner asserts 
      that it was never served with any notices or orders during the entire 
      proceeding.  The current owner further asserts that it was the duly 
      registered owner of the subject premises for two years before the 
      Administrator's order was issued.  Accordingly, the current owner states 
      that its petition is timely because it was filed within 35 days of 
      receiving a copy of the order from the prior owner.

      The tenant's answer, in substance, alleges that the 35 day deadline is 
      absolute and no exceptions are permitted.  The tenant argues that the 
      prior owner had fully participated in the proceeding below and that 
      effectively DHCR would be permitting the owners two opportunities to 
      litigate the issues.

      Subsequently, the current owner submitted a supplemental pleading which 
      addressed the merits of the case.  In the supplemental petition the 
      current owner provides comparability data.  The owner indicates that 
      only apartment 3 in the subject line was rented to a first stabilized 
      tenant within four years prior to or one year subsequent to the renting 
      of the subject apartment.  The owner cites two apartments in another 
      line, apartments 2 and 22, which the owner indicates are the only two 
      apartments in that line which are similar in size to the subject 
      apartment and which were rented to first stabilized tenants during the 
      appropriate period.  The owner submits a lease and an apartment 
      registration form with proof of service for apartments 2 and 22, and a 
      decontrol report for apartment 22.  Further, the current owner alleges 
      that the Commissioner must allocate the excess rents collected between 
      the prior owner and the current owner. 



      After careful consideration, the Commissioner is of the opinion that 
      this petition should be granted in part.







          CI 410080 RO

      The Commissioner finds that this petition for administrative review must 
      be deemed timely.  The 35 day time period for the filing of a petition 
      for administrative review is strictly enforced.  However, it is DHCR 
      policy that under extraordinary circumstances the Commissioner may deem 
      a petition timely despite the fact that it was filed more that 35 days 
      from the issuance of the Administrator's order.  In this case, the 
      current owner has sustained its burden of proving such extraordinary 
      circumstances.  The current owner has stated and DHCR records confirm 
      that it was the registered owner of the subject premises for two years 
      before the issuance of the Administrator's order, but that no copy of 
      the Administrator's order was sent to the current owner.  Accordingly, 
      the petition for administrative review is deemed timely.  Also, the 
      current owner received no notices from DHCR during the pendency of the 
      proceeding below.  In order to fully protect the current owner's due 
      process rights, all of its submissions will be considered in the 
      determination of this order and opinion.

      After a review of the owner's submissions, the Commissioner finds that 
      the current owner has failed to submit usable comparability data.  
      Apartments 2 and 22 are submitted as similarly-sized comparable 
      apartments in the subject building.  With regard to apartment number 2, 
      the current owner has failed to document a decontrol date for that 
      apartment, or to prove that the apartment was in fact vacancy 
      decontrolled.  While DHCR records include a rent control registration 
      card indicating that the report of vacancy decontrol was filed on 
      January 22, 1979, this was one of a number of such decontrol reports 
      filed for apartments in the subject building and therefore cannot be 
      considered dispositive of the date of decontrol for apartment 2.  
      Moreover, additional rent control records, including a 1967 rent control 
      order indicating that apartment number 2 was occupied by the 
      superintendent at that time and a 1972 Maximum Base Rent Order for the 
      subject building and subsequent Maximum Base Rent schedules submitted by 
      the owner which do not include the subject apartment, negate the owner's 
      contention that apartment 2 was vacancy decontrolled in August 1980.

      With regard to apartment number 22, the current owner has also failed to 
      prove the date of decontrol.  The decontrol report for apartment 22 
      submitted by the owner was one of the decontrol reports filed by the 
      owner in January 1979 and merely indicates that the unit was 
      decontrolled "after July 1, 1971."  No other evidence has been presented 
      to prove the owner's contention that the unit was decontrolled on July 
      1, 1976.




      With regard to apartment 3, the current owner has failed to substantiate 
      the date of decontrol.  DHCR records indicate that apartment 3 was also 
      one of the apartments for which a vacancy decontrol report was filed by 
      the owner in January 1979.  Again, this report cannot be considered 
      dispositive of the date of decontrol.  Further, the current owner has 
      failed to produce documentation that the first stabilized tenant of 












          CI 410080 RO

      apartment 3 was afforded an opportunity to challenge the first 
      stabilization rent.  No Notice of Initial Legal Regulated Rent or 
      Initial Apartment Registration form for apartment 3 has been submitted 
      and the RSA mailing list submitted by the owner as proof of service of 
      the initial apartment registration does not include apartment 3.  

      Accordingly, these 3 apartments will not be used as comparable 
      apartments in the determination of the fair market rent for the subject 
      apartment. 

      Finally, the Commissioner finds that the excess rents collected by the 
      prior owner and the current owner must be allocated between the owners.  
      In a fair market rent appeal each owner is liable to the tenant only for 
      the excess rents actually collected.  The Administrator determined that 
      the excess rent totalled $10,416.18 through February 29, 1988 including 
      excess security.  Title to the subject building transferred in June 
      1986.  Therefore, the prior owner, 203 West 85th Street Associates, is 
      liable to the tenant for $8,047.96 and the current owner, JNPJC Brusco 
      Associates, is liable to the tenant for $2,368.22.

      The prior owner is directed to refund that portion of the excess rent 
      for which it is liable.

      The current owner is directed to roll back the rent to the lawful 
      stabilized rents consistent with this decision and to refund or fully 
      credit against future rents over a period not exceeding six months from 
      the date of receipt of this order, the excess rent collected by the 
      current owner.

      In the event the current owner does not take appropriate action to 
      comply within sixty (60) days from the date of this order, the tenant 
      may credit the excess rent collected by the current owner against the 
      next months rent until fully offset.

      Because this determination concerns lawful rents only through           
      February 29, 1989, the owner is cautioned to adjust subsequent rents to 
      an amount no greater than that determined by this order plus any lawful 
      increases, and to register any adjusted rents with this order and 
      opinion being given as the explanation for the adjustment.

      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, granted in part, and, that the order of the Rent 
      Administrator be, and the same hereby is, modified to the extent 
      hereinabove indicated.

      ISSUED:






          CI 410080 RO



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner






    

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