DOCKET NO.:  CD 430048-RO
                              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. CD 430048-RO
                                           :   DRO DOCKET NO. ZLC 000093-FR/85
                 I. NAZARKEWYCZ,
                                           :   
                            PETITIONER               
     --------------------------------------X   
          
                                          
           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

     On April 6, 1988 the above named petitioner-landlord filed an appeal in 
     accordance with the applicable provisions of the City Rent Law and 
     Regulations against an order issued on March 7, 1988, by the Rent 
     Administrator of the Gertz Plaza, Jamaica, Rent Office, concerning the 
     housing accommodation known as 306 East 11th Street, various apartments, 
     New York, NY.

     The issue in this proceeding is whether the owner filed a report of fuel 
     cost decrease with the Administrator in a timely manner.

     This proceeding was initiated on November 22, 1987, on which date the 
     Administrator mailed to the owner a Notice of Proceeding to Suspend and 
     Revoke Fuel Cost Adjustment, based on the owner's having failed to file a 
     report of the decrease on the price of #6 fuel oil during 1984.

     On December 9, 1985 the owner answered the notice by stating that the fuel 
     used at the subject premises was #4 fuel oil, and that since (according to 
     the owner) the price of the #4 fuel oil rose in 1984, there was no need to 
     file a report.  The tenant attached a copy of a fuel delivery bill from 
     Mid-town Heating Corp. as proof of its contention that #4 fuel oil was 
     used.  The bill was dated November 5, 1985.

     On January 27, 1988, in response to the Administrator's inquiry, the owner 
     stated that the subject premises had converted from #6 oil to #4 oil in 
     June, 1987.

     On March 7, 1988 the Administrator issued the order being appealed herein 
     finding that the owner had failed to submit on a timely basis a report of 
     fuel cost decrease during 1984.  The Administrator ordered a suspension of 
     the total fuel cost rent adjustment for all of 1985.  The Administrator 
     further directed the owner to refund to the tenants any fuel cost increase 
     paid by them during 1985.

     On appeal, the landlord argues that since there was only an "extremely 
     small increase" in the cost of #4 fuel oil during 1985, the owner decided 
     not to apply for the 1985 fuel cost adjustment.

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







          DOCKET NO.:  CD 430048-RO


     A review of the record reveals a great deal of ambiguity concerning the 
     type of fuel oil used and the date it was first used.  In its December 9, 
     1985 response to the Administrator, the owner asserted (and documented) 
     that the subject premises used #4 fuel oil in 1985.  On January 27, 1988, 
     the owner again responded to the Administrator, but this time the owner 
     stated that it had only converted to #4 oil the year before.  On appeal, 
     the owner again asserts that #4 oil was in use during 1985.  Moreover the 
     copy of the Administrator's order in the Administrator's file states that 
     the owner did not file a report of price decrease of #6 fuel oil, while the 
     supposedly identical copy of the order served upon the owner is concerned 
     with #2 fuel oil.

     The Commissioner believes that the above-described conflicting and 
     ambiguous testimony is irrelevant to the Administrator's finding.

     The Commissioner notified the owner that proceedings to suspend and revoke 
     its fuel cost adjustment were being commenced due to owner's ostensible 
     failure to file a report of a 1984 decrease in the price of #6 fuel oil.  
     The owner answered by stating that it used #4 fuel oil during 1985.  Owner 
     also stated that since there was a slight increase in the price of #4 fuel 
     oil during 1984, it was not required to file a report with the 
     Administrator.

     An examination of the record reveals that contrary to owner's contention, 
     the price of #4 fuel oil decreased during 1984.  Moreover, the owner has 
     not sought to prove that it used #4 fuel oil during 1984 as it sought to 
     prove that it used #4 fuel oil during 1985.  Regardless of the type of fuel 
     that the owner may have purchased during 1984, the owner has not challenged 
     the Administrator's finding, namely that the owner did not file a report a 
     1984 fuel cost decrease with the Administrator on a timely basis.

     The Commissioner is thus of the opinion that the Rent Administrator 
     correctly suspended Fuel Cost Adjustments for the calendar year 1984.

     THEREFORE, in accordance with the applicable provisions of the Rent and 
     Eviction Regulations for New York City, it is 

     ORDERED, that this administrative appeal 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
                                                 Acting Deputy Commissioner
    

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