CC110384RO


                                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.CC110384RO
                                             (refiling of CA110138RO)
       Jack Harris, for                   :  DRO DOCKET NO.
       William A.White/Tishman East,Inc.     TC041596G ( CDR 32019)
                                             TENANT: Diane Jones              
            
                            PETITIONER    : 
      ------------------------------------X                             

          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW


      On March 9, 1988 the above-named petitioner-owner perfected the filing 
      of a Petition for Administrative Review against an order issued on 
      December 4, 1987 by the Rent Administrator, 10 Columbus Circle, New 
      York, New York concerning the housing accommodations known as 61-21 
      Grand Central Parkway, Forest Hills, New York, Apartment No.C1404 
      wherein the Rent Administrator determined that the owner had overcharged 
      the tenant.

      The Administrative Appeal is being determined pursuant to the provisions 
      of Section 2526.1 of the 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 by the filing in February, 1980  
      of a rent overcharge complaint by the tenant, in which she stated that 
      she had commenced occupancy on June 1, 1976 at a rent of $340.00 per 
      month.

      In answer to the tenant's complaint, the owner stated in substance that 
      it received no leases when it took over management of the building in 
      1977.

      In Order Number CDR 32019 the Rent Administrator determined that, due to 
      the owner's failure to submit a complete rental history, the tenant had 
      been overcharged in the amount of $7,280.00, and directed the owner to 
      refund such overcharge to the tenant as well as to reduce the rent.





      CC110384RO







          CC110384RO



      In this petition, the owner contends in substance that the tenant was 
      charged less than could have been charged.

      In answer to the owner's petition, the tenant stated in substance that 
      the Administrator's order was correct, and that she had purchased her 
      apartment.

      The Commissioner is of the opinion that this petition should be granted.
           
      Section 42A of the former Rent Stabilization Code requires that an owner 
      retain complete records for each stabilized apartment in effect from 
      June 30, 1974 (or the date the apartment became subject to rent 
      stabilization, if later) and to produce such records to the DHCR upon 
      demand.

      Section 26-516 of the Rent Stabilization Law, effective April 1, 1984, 
      limited an owner's obligation to provide rent records by providing that 
      an owner may not be required to maintain or to produce rent records for 
      more than four (4) years prior to the most recent registration and, 
      concomitantly, established a four year limitation on the calculation of 
      rent overcharges.

      It has been the DHCR's policy that overcharge complaints filed prior to 
      April 1, 1984 are to be processed pursuant to the Law or Code in effect 
      on March 31, 1984. [See Section 2526.1 (a) (4) of the current Rent 
      Stabilization Code.]  The DHCR has therefore applied Section 42A of the 
      former Code to overcharge complaints filed prior to April 1, 1984, 
      requiring complete rent records in these cases.  In following this 
      policy, the DHCR has sought to be consistent with the legislative intent 
      of the Omnibus Housing Act (Chapter 403, Laws of 1983), as implemented 
      by the New York City Conciliation and Appeals Board (CAB), the 
      predecessor agency to the DHCR, to determine rent overcharge complaints 
      filed with the CAB prior to April 1, 1984 by applying the law in effect 
      at the time such complaints were filed so as not to deprive such tenants 
      of their right to have the lawful stabilized rent determined from the 
      June 30, 1974 base date and so as not to deprive tenants whose 
      overcharge claims accrued more than four years prior to April 1, 1984 of 
      the right to recover such overcharges.  In such cases, if the owner 
      failed to produce the required rent records, the lawful stabilized rent 
      would be determined pursuant to the default procedure approved by the 
      Court of Appeals in 61 Jane Street Associates v. CAB, 65 N.Y.2d 898, 493 
      N.Y. S. 2d 455 (1985).

      However, it has recently been held in the case of J.R.D. Mgmt. v. 
      Eimicke, 148 A.D.2d 610, 539 N.Y.S. 2d 667 (App. Div. 2d Dept., 1989), 
      motion for leave to reargue or for leave to appeal to the Court of 
      Appeals denied ( App. Div. 2d Dept., N.Y.L.J., June 28, 1989, p.25, 
      col.1), motion for leave to appeal to the Court of Appeals denied (Court 
      of Appeals, N.Y.L.J., Nov. 24, 1989, p.24, col.4), motion for leave to 
      reargue denied (Court of Appeals, N.Y.L.J., Feb. 15, 1990, p.25, col.1), 
      that the Law in effect at the time of the determination of the 
      administrative complaint rather than the Law in effect at the time of 
      the filing of the complaint must be applied and that the DHCR could not 
      require an owner to produce more than four years of rent records.




          CC110384RO





      Since the issuance of the decision in JRD, the Appellate Division, First 
      Department, in the case of Lavanant v. DHCR, 148 A.D.2d 185, 544 
      N.Y.S.2d 331 (App. Div. 1st Dept. 1989), has issued a decision in direct 
      conflict with the holding in JRD.  The Lavanant court expressly rejected 
      the JRD ruling, finding that the DHCR may properly require an owner to 
      submit complete rent records, rather than records for just four years, 
      and that such requirement is both rational and supported by the Law and 
      legislative history of the Omnibus Housing Act.

      Since in the instant case the subject dwelling unit is located in the 
      Second Department, the DHCR is constrained to follow the JRD decision in 
      determining the tenant's overcharge complaint, limiting the requirement 
      for rent records to April 1, 1980.  An examination of the rent records 
      from April 1, 1980 discloses that no rent overcharge occurred.  
      Therefore, the Rent Administrator's order finding a rent overcharge must 
      be revoked.

      THEREFORE, in accordance with the Appellate Division ruling in JRD, it 
      is

      ORDERED, that this petition for administrative review be, and the same 
      hereby is, granted, that the order of the Rent Administrator be, and the 
      same hereby is, revoked, and it is found that no rent overcharge 
      occurred.

      ISSUED:



                                                                    
                                        JOSEPH A. D'AGOSTA
                                        Deputy Commissioner





    

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