CI 410084 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 and 6320
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NO. CI 410084 RO

                                          :  DISTRICT RENT ADMINISTRATOR'S
           JNPJC Brusco Associates,          DOCKET NO. 019800
                                             
                                             TENANT: Vanessa Eng          

                            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 April 8, 1988, by a 
      District Rent Administrator concerning the housing accommodations known 
      as 203 West 85th Street, New York, New York, Apartment No. 31, 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      By stipulation dated May 29, 1992, the court proceeding was withdrawn on 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.

      Subsequently, and after more than ninety days had elapsed from the time 
      it filed its petition for administrative review, the owner deemed its 
      petition as having been denied, and sought judicial review in the 
      Supreme Court of the State of New York pursuant to Article 78 of the 
      Civil Practice Law and Rules.

      By stipulation dated July 23, 1992, the court proceeding was withdrawn 
      on condition that the DHCR render a determination of the owner's 
      petition for administrative review by September 26, 1992.


      The Commissioner has reviewed all of the evidence in the record and has 
      carefully considered that portion of the record relevant to the issues 












          CI 410084 RO

      raised by the administrative appeal.  

      This proceeding was commenced on August 14, 1984 upon the filing of a 
      tenant's objection to registration.  The tenant requested both a fair 
      market rent appeal and an overcharge inquiry.  

      The tenant's complaint was served on the prior owner.  In its answer, 
      the prior owner alleges, among other things, that the tenant was 
      precluded from filing a fair market rent appeal because she was not the 
      first stabilized tenant.  Also, 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 $235.45 effective February 1, 1980 
      and that the excess rents collected totalled $9,331.39. 

      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 
      none of the apartments in the subject line were 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 both apartments, 
      and a decontrol report for apartment number 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.

      The Commissioner finds that this petition for administrative review must 






          CI 410084 RO

      be deemed timely.  The 35 day time period for the filing of a petition 
      for administrative review is strictly enforced.  However, DHCR policy 
      has been 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.  Further, 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 a Report of Vacancy Decontrol for apartment 2 was 
      filed on January 22, 1979, this was one of a number of such decontrol 
      reports filed for apartments in the subject building on that date 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 support the owner's contention that apartment 22 was decontrolled on 
      July 1, 1976.

      Accordingly, these two 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 $9,331.39 through April 30, 1988. Title to the 
      subject building transferred in June 1986.  Therefore, the prior owner, 












          CI 410084 RO

      203 West 85th Street Associates, is liable to the tenant for $6,984.10 
      and the current owner JNPJC Brusco Associates, is liable to the tenant 
      for $2,347.29.

      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           
      April 30, 1988, 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:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner

    

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