CB110205RT
                             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. CB110205RT

                Marie Ross                :  DISTRICT RENT OFFICE
                                             DOCKET NO. 58133
                                            
                                             OWNER: John Maltezakis     

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

           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


      On February 29, 1988, the above-named tenant filed a Petition for 
      Administrative Review against an order issued on January 25, 1988, by a 
      Rent Administrator, concerning the housing accommodations known as  
      Apartment 9 at 37-11 30th Avenue in Astoria, Queens, wherein the  
      Administrator dismissed the tenant's complaint of overcharge.

      The underlying proceeding was commenced in August, 1985, as a Tenant's 
      Objection to Rent Services Registration.  The form on which it was 
      submitted allowed the complainant to check off those items that she 
      found applicable; the tenant thereby indicated: that her rent was an 
      overcharge, adding: "Because of item #11"; and under item 11, that the 
      number of rooms (4 "and bath") listed by the owner in the apartment- 
      registration statement was incorrect, the apartment in fact containing 
      3 (the half representing the bathroom).

      Due to the owner's failure to submit a floor plan, the Administrator 
      determined in the ensuing order (here appealed) that the apartment 
      contained three rooms (as this Division does not recognize half rooms).  
      The order goes on to state that because the tenant filed her objection 
      to the registration statement more than 90 days after receiving her copy 
      of same, that objection was untimely as to rent, so that "the overcharge 
      part of the objection is dismissed."

      The tenant's petition against that order reads in its entirety as 
      follows.

           I do not believe it is fair that the overcharge
           be dismissed on a technicality as I initially 
           contacted DHCR by phone July 1984 and was not
           apprised of the fact that the bathroom was to
           be omitted in room count.  The landlord told me
           that for purposes of registration the bathroom
           was included therefore I did not file an objection
           1984 until a lawyer informed me August 7, 1985
           that bathrooms were not counted.

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








          CB110205RT


      The Commissioner understands the petition to state that the reason the 
      tenant failed to object within 90 days is that she had been misinformed- 
      -once by this Division over the telephone and once by her landlord-- 
      concerning the rules of room-counting for registration purposes; the 
      implication is that the Commissioner should therefore excuse that 
      tardiness and process the overcharge aspect of her Objection.  
      Unfortunately the rule governing the Administrator's decision--that the 
      rent stated in the 1984 registration statement becomes unchallengeable 
      if not objected to within 90 days after service of same upon the tenant- 
      -is codified in the Rent Stabilization Code and not subject to the 
      Commissioner's discretion. (Moreover (a) the Commissioner would not at 
      any rate accept a filing that, as here, is almost a year past the 
      deadline, based on the mere allegations that an unspecified agency 
      employee (over the telephone) and the owner, had given the tenant 
      inaccurate advice, and (b) the question of overcharge is not related to 
      that of room count, so that there would have been no justification for 
      the tenant's delay even if those persons did in fact tell the tenant 
      that "the bathroom was included".

      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.


      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner
    

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