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. CL410225RO
                                              :  DRO DOCKET NO.L3117399RT
               MARY E. RIBARICH                  TENANT: NATASHA VASSILOV

                                PETITIONER    : 
          ------------------------------------X                             
             ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


               On December 27, 1988, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on 
          November 25, 1988, by the Rent Administrator, 10 Columbus Circle, 
          New York, New York, concerning the housing accommodations known as 
          303 East 76th Street, New York, New York, Apartment No. 11, wherein 
          the Rent Administrator determined the fair market rent pursuant to 
          the special fair market rent guideline promulgated by the New York 
          City Rent Guidelines Board for use in calculating fair market rent 
          appeals.
               
               The Commissioner notes that this proceeding was filed 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 Administrative Appeal is being determined pursuant to the 
          provisions of Sections 2520.6(i) and 2527.3 of the current Rent 
          Stabilization Code.

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

               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 in March, 1984, by the 
          tenant's filing of a fair market rent adjustment application in 
          which the tenant stated that she first moved to the subject 
          apartment on February 1, 1981, at a rental of $380.00 per month.

               On August 27, 1985, a copy of the complaint was sent to 
          "Whiteyard Industries, Inc." at 236 East 78th Street, New York, New 
          York, 10021.  On September 15, 1986, a notice affording the owner 
          the opportunity to submit certain information for the processing of 









          CL410225RO



          the tenant's application was sent to the owner herein Mary Ribarich, 
          c/o Whiteyard Industries, Inc. at 236 East 78th Street, New York, 
          New York, 10021 and to the owner's agent Clarence Lemle at 236 East 
          78th Street, New York, New York, 10021.  In a letter dated September 
          18, 1986, a representative of Whiteyard Industries, Inc. stated that 
          the subject premises was sold approximately one year ago, "and 
          neither this office nor Mary E. Ribarich have any connection with 
          these premises at this time".  Further on October 20, 1986, in 
          response to another notice, Whiteyard Industries stated "As you have 
          been previously advised on numerous occasions the building noted 
          above [the subject premises] was sold and we have had no connection 
          with the building for approximately one year".  Subsequently, Church 
          Management, Division of Peter Sharp & Co.; Whiteyard Industries, and 
          East Egg Associates were served with copies of the tenant's 
          application and afforded an opportunity to submit comparability 
          data.  In a response dated June 1, 1988, Church Management stated in 
          substance that it was the agent for East Egg Associates; that East 
          Egg Associates purchased the subject premises from Lemle Brothers on 
          November 6, 1985, and that Lemle Brothers did not forward any 
          documents prior to 1981.  In a response dated July 14, 1988, 
          Clarence Lemle c/o Whiteyard Industries, Inc. 236 East 78th Street, 
          New York, New York, 10021, stated in substance that the only 
          association of Lemle Brothers, Clarence Lemle and Whiteyard 
          Industries was as managing agent of the subject premises and not 
          owner; that all documents relating to the subject premises were 
          turned over to East Egg Associates upon the purchase of the subject 
          premises by East Egg in 1985 and that East Egg is responsible for 
          any tenant claims.

               In Order Number CDR 34,275, the Rent Administrator adjusted the 
          initial legal regulated rent by establishing a fair market rent of 
          $262.03 effective February 1, 1981, found that the tenant had paid 
          excess rent of $12,097.41 from February 1, 1981 through November 30, 
          1988, and directed the current owner to refund to the tenant the 
          excess rent paid by the tenant from the time the current owner 
          acquired the subject premises in November 1985, and directed the 
          prior owner to refund any excess rent collected by it.  In said 
          order, the current owner was listed as Church Management Division of 
          Peter Sharp & Co. (Agent of East Egg Associates) and the prior owner 
          was listed as Clarence Lemle and Brothers.

               In this petition, petitioner Mary E. Ribarich, alleges in 
          substance that she is the former owner of the subject premises and 
          sold the subject premises to East Egg Associates on November 6,     
          1985; that Whiteyard Industries, Inc. and Lemle Brothers, who are 
          named on the order as prior owners, never have been the owners of 
          the premises, but only the managing agents; and that she never 
          received any notification of the proceedings and consequently the 
          Rent Administrator's order must be reversed.  The petitioner also 
          submitted copies of rent statements for the subject building from 
          the period May through December 1976 and stated that the subject 
          apartment was decontrolled and rerented to the first stabilized 
          tenant in February 1977.  The owner also submitted rent statements 






          CL410225RO

          showing the subject apartment was vacant in December 1976  and 
          January 1977 and rerented to a new tenant in February 1977. 

               The Commissioner is of the opinion that this petition should be 
          denied.

               Section 2527.3 of the current Rent Stabilization Code provides 
          in pertinent part that except where an attorney or other authorized 
          representative appears for the owner, any notice, order or other 
          process or paper, directed to the person named in the last filed 
          registration statement as the owner at the address given therein, or 
          where a notice of change in identity has been filed, to the person 
          named as owner and at the address given in the most recent such 
          notice, shall constitute notice to the person who is then the owner.

               Section 2520.6(i) of the current Rent Stabilization Code 
          defines owner as a fee owner, lessor, sublessor, assignee, net 
          lessee, or a proprietary lessee of a housing accommodation, or an 
          owner of a condominium unit or the sponsor of such cooperative 
          corporation or association or condominium development, or any other 
          person or entity receiving or entitled to receive rent for the use 
          or occupation of any housing accommodation, or an agent of any of 
          the foregoing.

               DHCR registration records indicate that the owner herein Mary 
          E. Ribarich listed her managing agent as Clarence Lemle at 236 East 
          78th Street in the 1985 registration for the subject premises.  
          Further pursuant to Section 2520.6(i), a managing agent is included 
          in the definition of owner.  Accordingly, it was proper to list 
          Clarence Lemle and Brothers at 236 East 78th Street as a prior owner 
          in the Rent Administrator's order under appeal herein.  With regard 
          to Ms. Ribarich's contention that she never received notice of the 
          proceeding, the evidence of record in this case as discussed above 
          indicates that Ms. Ribarich herself was sent a notice but that her 
          agent responded that she was no longer interested since she had sold 
          her interest in the subject premises.  It is noted that in the 1985 
          registration, Ms. Ribarich listed her address as 236 East 78th 
          Street, the same address as her agent.  The Commissioner considers 
          that Ms. Ribarich and her agents received proper notice and were 
          afforded an opportunity to participate in the proceeding before the 
          Rent Administrator.  Finally, it is noted that the rental evidence 
          submitted by Ms. Ribarich for the first time on appeal cannot 
          properly be considered as this is not a de novo proceeding and no 
          reasonable excuse has been advanced to excuse its submission in the 
          proceeding before the Rent Administrator.  Accordingly, the Rent 
          Administrator's order was warranted.

               The owner is directed to reflect the findings and 
          determinations made in this 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 this order.  The 
          owner is further directed to adjust subsequent rents to an amount no 







          CL410225RO

          greater than that determined by this order plus any lawful 
          increases.

               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.

          ISSUED



                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner







                     






























    

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