CD410021RO, CD410059RT

                                  STATE OF NEW YORK
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                               JAMAICA, NEW YORK 11433

          APPEALS OF                             DOCKET NO.CD410021RO
                                              :            CD410059RT

                                PETITIONERS   : 

               On April 22, 1988 and April 25, 1988, the above-named 
          petitioner-owner and tenant filed Petitions for Administrative 
          Review against an order issued on March 24, 1988, by the Rent 
          Administrator, 92-31 Union Hall Street, Jamaica, New York, 
          concerning the housing accommodations known as 140 West 10th Street, 
          New York, New York, Apartment No. 4FW, wherein the Rent 
          Administrator determined that the owner had overcharged the tenant.  
          These petitions are being consolidated for determination herein.

               The Administrative Appeals are being determined pursuant to the 
          provisions of Sections 2526.1 and 2522.4 of the Rent Stabilization 

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

               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 appeals.  

               This proceeding was originally commenced in February, 1986, by 
          the tenant's filing of a rent overcharge complaint in which she 
          stated in substance that she first moved to the subject apartment on 
          August 1, 1984 at a rental of $558.31 per month and that her initial 
          rent included a charge of $297.87 for a complete new kitchen which 
          was excessive.

               In an answer to the tenant's complaint dated April 4, 1986, the 
          prior owner stated in substance that the subject apartment was fully 
          renovated with a new kitchen with new appliances, fixtures and 
          cabinets; new bathroom with new ceramic tiles; new shower, new sink, 
          new toilet bowl and fixtures; complete new sheet rock walls and 
          ceiling; new electric wiring and new fixtures; new plumbing and 
          fixtures; carpeting throughout apartment and new tiles in kitchen at 
          a total cost of $12,411.97 so that the prior owner was entitled to 

          CD410021RO, CD410059RT

          a rent increase of $310.29 (1/40th of $12,411.94).

               On August 19, 1987, the prior owner was directed by the DHCR to 
          submit copies of cancelled checks and bills to document the claimed 
          improvements and to submit copies of leases from July 1, 1975 to 
          substantiate the vacancy allowance pursuant to Rent Guideline Board 
          Order No. 15.

               No response was received from the prior owner but on August 10, 
          1987, the current owner submitted a response stating that the 
          subject apartment was substantially altered and comprehensively 
          rehabilitated at a total cost of $13,489.41.  In support of such 
          contention, the current owner submitted an invoice not marked paid 
          in full from D.R. Maintenance Service & Light Trucking dated April 
          15, 1984, to the effect that a total price of $7500.00 was agreed 
          upon to remodel the subject apartment.  Such work was to consist of 
          "remove and replace walls and ceiling. Install with 5/8" sheetrock 
          and prepare for painting.  Replace all new electrical wiring, 
          outlets and fixtures.  Remove all debris and sweep broom clean from 
          work site."  The current owner submitted copies of cancelled checks 
          made out to the principals of D.R. Maintenance Service & Light 
          Trucking with dates from 1984 through 1986.  The current owner also 
          submitted copies of cancelled checks for a new stove, refrigerator, 
          and sink, and for painting, plumbing and new carpeting.

               In a Notice dated October 19, 1987, the DHCR directed the 
          current owner to submit itemized paid bills from D.R. Maintenance 
          Service & Light Trucking.  In an answer dated December 4, 1987, the 
          current owner stated inter alia that it was unable to obtain any 
          further breakdown of the bills.

               On October 19, 1987, the tenant submitted an additional 
          statement alleging in substance that there is no new bathroom in the 
          subject apartment; rather the apartment contains a shower stall in 
          the kitchen and a toilet in a narrow water closet at the end of the 
          apartment; that the toilet did not appear to be new when the tenant 
          moved in; that the prior tenant's last lease included a charge for 
          a new stove and refrigerator; and that some linoleum was installed 
          in the subject apartment.  The tenant submitted pictures of the 
          subject apartment and a floor plan of the subject apartment in 
          support of her contentions.  The floor plan indicated that there was 
          only one sink in the subject apartment.

               In Order Number ZAB410257R, the Rent Administrator determined 
          that the tenant had been overcharged in the amount of $891.16 and 
          directed the current owner to refund such overcharge to the tenant.  
          The Rent Administrator in such determination, allowed a rent 
          increase of $337.42 based on a total cost of $13,489.14 for new 
          equipment, but did not allow any vacancy allowance pursuant to 
          Guideline 15.

          CD410021RO, CD410059RT

               In his petition, the prior owner of the subject premises 
          alleges in substance that he was never informed of the proceedings 
          and thus was not given a chance to show that he was entitled to a 
          vacancy allowance pursuant to Guideline 15.  In support of such 
          contention, the prior owner submitted a copy of the lease renewal 
          for the prior tenant for the lease commencing April 1, 1983.  In 
          said renewal form, the last lease prior to the renewal was stated to 
          have commenced on April 1, 1980.

               In her petition, the tenant alleges in substance that the prior 
          owner could not have incurred expenses totalling $13,489.14 for the 
          installation of new equipment and submitted another copy of her 
          October 19, 1987 submission.

               The Commissioner is of the opinion that the prior owner's 
          petition should be denied and that the tenant's petition should be 
          granted in part.

               Contrary to the prior owner's contention, he was afforded an 
          opportunity to submit lease information to show he was entitled to 
          a vacancy allowance pursuant to Guideline 15.  However he did not 
          submit such information and information submitted for the first time 
          on appeal without a reasonable explanation cannot be considered 
          since this is not a de novo proceeding.  Moreover even on appeal, 
          the prior owner has not submitted sufficient information to 
          determine whether he was entitled to a Guideline 15 vacancy 
          allowance.  He was required to submit lease information from July 1, 
          1975 but only submitted lease information from April 1, 1980.  
          Therefore the Rent Administrator correctly did not include a 
          Guideline 15 vacancy allowance in determining the lawful 
          stabilization rent of the subject apartment.

               With regard to the tenant's petition, the Commissioner has 
          examined the documentary evidence submitted by the prior owner and 
          current owner in support of the claimed improvement costs.  Based on 
          the invoice from D.R. Maintenance Service & Light Trucking  and the 
          cancelled checks to the principals of said company, the Commissioner 
          deems it appropriate to allow $5542.56 for improvements done by such 
          company as listed in the invoice previously described.  The 
          Commissioner is disallowing four other cancelled checks made out to 
          the principals of this company since they were dated at least a year 
          after the tenant had moved to the subject apartment and it can't be 
          ascertained if such checks were used for work done in the subject 
          apartment.  It is noted that the total of all cancelled checks to 
          said principals submitted does not add up to the $7500.00 listed in 
          the invoice.  The Commissioner also deems it appropriate to allow 
          $346.66 for a new sink and $832.44 for a new stove and refrigerator 
          for which the owner submitted copies of invoices and cancelled 
          checks.  This amounts to a total of $6721.66 divided by 40 or a 
          total rent increase of $168.04.  It is noted that contrary to the 
          tenant's contention, there is no evidence that the prior tenant was

          charged a rent increase for a new stove and refrigerator.  Further 

          CD410021RO, CD410059RT

          items submitted by the owner for painting, plumbing, carpeting have 
          been disallowed as not specifically documented as to the work done 
          and in the case of carpeting, no evidence that the subject apartment 
          was carpeted.  It is also noted that the tenant's pictures and floor 
          plan (submitted along with the tenant's petition and served on the 
          current owner along with the appeal) support a finding that 
          extensive bathroom work and renovations were not done in the subject 
               Taking the above factors into account, the Commissioner has 
          recalculated the lawful stabilization rents and the amount of the 
          rent overcharge.  The lawful stabilization rents and the amount of 
          the rent overcharge are set forth on the amended rent calculation 
          chart attached hereto and made a part hereof.

               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 
          greater than that determined by this order plus any lawful 

               DHCR records now disclose that the tenant has moved from the 
          subject apartment.  Therefore, a copy of this order is being sent to 
          the current occupant of the subject apartment.

                    The Commissioner has determined in this Order and Opinion 
          that the owner collected overcharges of $10,337.26.  This Order may, 
          upon expiration of the period for seeking review of this Order and 
          Opinion pursuant to Article Seventy-eight of the Civil Practice Law 
          and Rules, be filed and enforced as a judgment.  Where the tenant 
          files this Order as a judgment, the County Clerk may add to the 
          overcharge, interest at the rate payable on a judgment pursuant to 
          Section 5004 of the Civil Practice Law and Rules from the issuance 
          date of the Rent Administrator's Order to the issuance date of the 
          Commissioner's Order.

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

               ORDERED, that the tenant's petition for administrative review 
          be, and the same hereby is, granted in part, that the prior owner's 
          petition for administrative review be, and the same hereby is, 

          CD410021RO, CD410059RT

          denied, and, that the order of the Rent Administrator be, and the 
          same hereby is, modified in accordance with this order and opinion.


                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner



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