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.: CK 410049-RO
                                         :  
                                            DRO DOCKET NO.: L 3110629-RT
      140 WEST EQUITIES, INC.,
                           PETITIONER    :  TENANT: KEVIN BARRY
     ------------------------------------X                             

         ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
         PART AND REMANDING PROCEEDING TO THE DISTRICT RENT ADMINISTRATOR

     On November 4, 1988, the above-named petitioner-owner filed a Petition for 
     Administrative Review against an order issued on October 4, 1988,  by  the
     District Rent Administrator, 10  Columbus  Circle,  New  York,  New  York,
     concerning housing accommodations known as Apartment 4A at 140  West  71st
     Street, New York,  New  York,  wherein  the  District  Rent  Administrator
     determined that the tenant had been overcharged.

     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.

     This  proceeding  was  originally  commenced  by  the  filing  of  a  rent
     overcharge complaint and fair market rent appeal application with the  New
     York City Conciliation and Appeals Board (CAB),  one  of  the  predecessor
     agencies to the Division of Housing and  Community  Renewal.   The  tenant
     took occupancy pursuant  to  a  lease  commencing  November  1,  1982  and
     expiring October 31, 1983 at  a  monthly  rent  of  $330.86.   The  tenant
     indicated in his application that he had not  received  an  initial  legal
     regulated rent notice (Notice form DC-2) from the owner.

     The prior owner was notified of the tenant's fair market rent appeal,  was
     requested to submit proof of service of a DC-2 Notice  on  the  tenant  as
     well as a rental history of the subject apartment from June  30,  1974  or
     the  date  of  decontrol,  and  was  afforded  an  opportunity  to  submit
     comparability data.  In response,  the  prior  owner  indicated  that  its
     registration was handled through the Rent Stabilization Association.   The
     prior owner stated that it did not have June 30, 1974 rent records for the 
     subject building.  The prior owner submitted a rental  history  indicating
     an August 15, 1979 base date for the subject apartment.  The rental 







          DOCKET NUMBER: CK 410049-RO
     history stated by the prior owner for the period prior to the  applicant's
     occupancy was as follows: August 15, 1979 - tenant Arango  2  year  lease-
     at $235.00 per month; February 1, 1981 - tenant   Fichter-one  year  lease
     at $272.60 per month; February 1, 1982 -  tenant  Fichter-3  year  renewal
     lease at $316.22 per month. 

     By notice dated February 3, 1988, the current owner was  notified  of  the
     pending proceeding and was requested to submit rent records from the  base
     date.  By notice dated March 22, 1988 (Final Notice of  Pending  Default),
     the owner was requested to submit proof of service of  a  DC-2  notice,  a
     copy of a Landlord's Report of Statutory Decontrol or a  copy  of  a  rent
     ledger two months prior and two months after decontrol.

     By answer dated April 8, 1988, the owner submitted  a  copy  of  the  rent
     ledger two months prior and three months after decontrol (November 1978 to 
     March 1979).  The owner advised  that  the  last  rent  controlled  tenant
     (Halper) vacated in December 1978, the first rent stabilized tenant was J. 
     Restrepo at a rent of $200.00 per month and in March 1979  J.  Genoa  took
     occupancy also at a rent of $200.00 per month.

     In the order under appeal herein, the Administrator determined the  lawful
     stabilized rent utilizing the default procedure pursuant to Section 42A of 
     the Code, and directed the owner to refund overcharges in  the  amount  of
     $5,353.46, including interest on overcharges collected after April 1, 1984 
     and excess security.

     In this petition, the owner asserts that it was unaware of the  proceeding
     until the DHCR sent its Final Notice  of  Pending  Default  on  March  22,
     1988; that the owner complied with the notice by submitting  the  required
     rent ledgers; that if the DHCR required  any  additional  information,  it
     should have notified the owner; and that a  complete  rental  history  was
     submitted by the prior owner.  The owner submits with its petition  copies
     of all leases from March 20, 1979.  The owner also asserts that the tenant 
     has not been occupying the apartment as his  primary  residence  and  that
     inasmuch as the tenant's complaint was filed prior to April 1,  1984  when
     the CAB was in charge of  determining  non-primary  residence  cases,  the
     owner requests that it be allowed to submit evidence  that  the  apartment
     was not occupied as the tenant's  primary  residence  and  the  tenant  is
     therefore not entitled to protection under the Rent Stabilization Law.

     In answer to this petition,  the  tenant  asserts  that  the  petition  is
     fatally defective because the owner failed to insert the county as part of 
     its affirmation.  The tenant also disputes that the owner's April 8,  1988
     submission and the prior owner's August 26, 1985  submission  including  a
     rental history were ever submitted to the Administrator and  asserts  that
     the Administrator's determination that the owner had failed to  provide  a
     complete rental history was correct.  The tenant also asserts that  treble
     damages should be awarded since the owner has failed  to  prove  that  the
     overcharge was not willful and requests that attorney's  fees  be  awarded
     him.  The tenant further submits an affidavit attesting to the  fact  that
     he has occupied the subject apartment as his primary residence  since  the
     commencement of his tenancy.

     By subsequent correspondence, the tenant asserts that some or all  of  the
     claimed tenants never lived in the apartment or are fictitious persons; 






          DOCKET NUMBER: CK 410049-RO
     that the documents indicate that four  different  leases  were  in  effect
     during a seven month period; that one document indicates a  base  date  of
     August 15, 1979 and list tenant Arango as  the  first  stabilized  tenant,
     while the alleged rent ledger indicates tenant  J.  Restrepo  in  February
     1979 and tenant J. Genoa in March 1979;  and  that  the  owner's  petition
     should be denied because of the  inconsistencies,  because  the  documents
     were not presented during the  proceeding  before  the  Administrator  and
     because it is not possible to cross-examine or  test  the  validity  of  a
     document during a review proceeding.

     In reply to the tenant's answer, the owner, among other things,  reasserts
     that a complete rental history was submitted to the Administrator and that 
     the application of the default procedure was not warranted.

     The Commissioner is of the opinion that this petition should be granted in 
     part.

     Regarding the tenant's assertion that the petition  is  fatally  defective
     because of the petitioner's failure to insert the county as  part  of  its
     affirmation, the Commissioner finds that such failure is not  critical  to
     the affirmation.  Moreover, the Commissioner finds that rejection  of  the
     petition more than 3 years after the filing of the petition would  not  be
     consistent with the Rent Stabilization  Code  which  pursuant  to  Section
     2529.7 authorizes rejection of a petition for administrative review by the 
     Commissioner within a reasonable time after the filing of the petition.

     The record in this  case  includes  the  prior  owner's  August  26,  1985
     submission date stamped received by the Division August 27, 1985  and  the
     current owner's April 8, 1988 submission  date  stamped  received  by  the
     Division April 13, 1988.  The owner's April 8,  1988  submission  contains
     the rent ledgers for the period two months and two months after  decontrol
     as requested in the Division's March 22,  1988  Final  Notice  of  Pending
     Default.  The owner thus cannot be deemed to have defaulted  in  that  the
     owner complied with the request for rent data in the Final Notice  and  no
     further notice requesting additional data was  sent  to  the  owner.   The
     Commissioner rejects the tenant's allegations of  inconsistencies  in  the
     owner's submissions.  While the prior owner incorrectly indicated  a  base
     date of August 15, 1979 in its August 26,  1985  submission,  the  current
     owner's submission of leases from March 20,  1979  corroborates  the  rent
     ledgers previously submitted by the owner to the Administrator.  The  rent
     ledgers indicate that the last  rent  controlled  tenant  in  the  subject
     apartment died in December 1978; that the apartment was rented to 
     J. Restrepo in January 1979 at a  rent  of  $200.00  per  month;  that  J.
     Restepo vacated in February 1979,  moving  to  another  apartment  in  the
     building; and that the subject apartment was thereafter rented to J. Genoa 
     in March 1979 at a rent of $200.00 per month.  The Commissioner finds that 
     the tenant's unsubstantiated allegations that some or all of  the  claimed
     tenants never lived  in  the  apartment  or  are  fictitious  persons  are
     outweighed by the owner's submission  of  documentary  evidence  including
     leases and rent ledgers.  It  is  further  noted  that  the  rent  history
     indicated by the prior owner for the period from August 15, 1979 onward is 
     consistent with the leases submitted by the current owner.

     The record indicates that the tenancy of the first tenant  to  occupy  the
     subject apartment after  vacancy  decontrol  (J.Restrepo)  lasted  only  2
     months, from January 1979 to February 1979.  The Commissioner finds that,






          DOCKET NUMBER: CK 410049-RO
     inasmuch as it is the Division's policy not to recognize tenancies of less 
     than 3 months and inasmuch as the rent charged that tenant was the same as 
     that charged the subsequent tenant who took occupancy pursuant to a  lease
     commencing March 20, 1979, the base rent date for the subject apartment is 
     March 20, 1979.

     Section  25  of  the  Code  provides  that  a  fair  market  rent   appeal
     application must be filed within 90 days of receipt of the  initial  legal
     regulated rent notice (DC-2 notice).  Section 26 of the Code provides that 
     said notice shall be served by the owner on the tenant by certified mail.

     The tenant in this case filed a fair market rent appeal application  which
     the Administrator failed to process.  The tenant in his application stated 
     that he did not receive a DC-2 notice from the owner and the owner has not 
     alleged service of a DC-2 notice on the tenant or  a  prior  tenant.   The
     Commissioner therefore finds that the proceeding should  be  remanded  for
     processing of the tenant's fair market rent  appeal,  including  affording
     the current owner an opportunity to submit comparability data.   The  fair
     market rent appeal should be processed as a challenge  to  the  March  20,
     1979 base date rent.

     It is noted that the initial March 20, 1979 lease  expired  on  March  31,
     1981 and that prior to the expiration of that lease term a new tenant took 
     occupancy pursuant to a 2 year lease commencing on  August  15,  1979  and
     expiring on August 14, 1981.  Pursuant to Section 20A(4) of the Code,  the
     fair market rent that is established commencing March 20, 1979 must remain 
     in effect until the expiration of the initial lease on March 31, 1981.

     Regarding  the  owner's   allegation   of   non-primary   residence,   the
     Commissioner finds that the owner did not commence a  proceeding  alleging
     non-primary residence with the CAB  and  the  owner  may  not  raise  such
     allegation in this administrative appeal.

     Concerning the tenant's request  for  an  award  of  treble  damages,  the
     Commissioner notes that since  the  tenant  failed  to  raise  this  issue
     affirmatively by filing a timely petition for administrative  review,  the
     raising of this issue in an answer to the owner's petition cannot  operate
     as a proper challenge to  the  order.   However,  it  is  noted  that  the
     proceeding is being remanded to the Administrator for processing as a fair 
     market rent appeal and that treble damages are not awarded in fair  market
     rent appeal cases (Accord: ART 2020-L and ARL 2023-L).

     With regard to the tenant's request for attorney's fees for his answer  to
     the owner's petition, the Commissioner notes that Section 2526.1(d) of the 
     current Rent Stabilization Code provides for the award of attorney's  fees
     in  the  proceeding   before   the   Administrator.    Given   that   this
     administrative appeal is limited to a review of the actions taken  by  the
     Rent Administrator, and not to new issues, an  award  of  attorney's  fees
     will not be granted for attorney's fees incurred at the appeals  level  in
     this case.

     THEREFORE, in accordance with the Rent Stabilization Law and Code, it is










          DOCKET NUMBER: CK 410049-RO
     ORDERED, that this petition be and the same hereby is granted in part  and
     the proceeding be and the same hereby is remanded  to  the  District  Rent
     Administrator for further processing in accordance  with  this  order  and
     opinion.   The  automatic  stay  of  so  much   of   the   District   Rent
     Administrator's order as directed a refund is hereby continued until a new 
     order is issued upon remand.  However, the  Administrator's  determination
     as to the rent is not stayed and shall remain in effect,  except  for  any
     adjustments pursuant to lease renewals, until the Administrator  issues  a
     new Order upon remand.

     ISSUED:













                                                                   
                                     JOSEPH A. D'AGOSTA
                                     Deputy Commissioner




                                                   
    

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