CF210291RO

                                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. CF210291RO

                                          :  DRO DOCKET NO. K-3105285-R/T
         Mariana Mohylyn,
                                             TENANT: Susan Pearsall           
                

                            PETITIONER    X 
      --------------------------------------                             

              ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE
                         REVIEW AND REMANDING PROCEEDING


      On June 27, 1988, the above-named owner filed an appeal of an order 
      issued on May 23, 1988 by a Rent Administrator, concerning the housing 
      accommodations known as apartment X at 145 Prospect Park West, Brooklyn, 
      New York, wherein the Rent Administrator determined that the owner had 
      overcharged the tenant.

           This proceeding was commenced by the simultaneous filing, in March, 
      1984, of an overcharge complaint and a Fair Market Rent Adjustment 
      Application.  The complaint stated inter  alia:  that the tenant  
      "believe[d] the apartment was rent controlled until 8/28/1981.  Previous 
      tenant had occupied apartment for more than 15 years"; and that the 
      complainant had done the majority of the cleaning that had been 
      necessary for her to assume occupancy, including dealing with the 
      "previous tenants belongings who had recently died while living in 
      apartment."  The Application similarly stated that the previous tenant 
      had "died 8/81," adding that the tenant had received certain unspecified 
      "information"  from  "a former tenant."

           In response the owner stated inter  alia: that the rent-controlled 
      occupant, "Robert Doyle," had died late in May of 1981  (the owner 
      enclosing a copy of a money order written that month to  "M. Moholyn"  
      by Robert Doyle, which the owner represented as being  the last payment 
      by that tenant);  and that the complainant had previously occupied 
      apartment S in the same building and had paid the rent therefor through 
      August of 1981.

           Also in the Administrator's file was a copy of a letter to the 
      owner, in which the tenant stated inter alia that she had been  
      "residing . . . in this building for almost four years . . .  (two and 
      one half years in apartment X)."

           Based on the owner's asserted failure to provide a complete rental 
      history, the Rent Administrator found the overcharge against which this 
      appeal is taken, under the  "default"  mechanism used in such cases by 

      this Division.  In this petition, the owner alleges inter  alia that 







          CF210291RO


      because the tenant had filed a "Fair Market Rent Appeal,"  this matter 
      should have been processed as such.  The tenant responds that the time 
      for the owner to submit rental records is past.

           The Commissioner is of the opinion that this petition should be 
      granted and the proceeding remanded for treatment as a fair market rent 
      appeal.

           Records of this Division reflect that a J. Doyle lived in the 
      subject accommodations at the end of 1971 and an R. Doyle as of 1977, 
      and that the apartment was subject to Rent Control as late as March, 
      1979.  When combined with the aforementioned belief of the tenant--who 
      was not at all new to the building--that the previous, rent-controlled 
      tenant had recently died  (and especially with the fact that the tenant 
      had had to deal with her predecessor's belongings, tending to indicate 
      a death rather than a mere change in residence), the owner's assertions 
      to the same effect  (accompanied as they are by evidence of a 1981 
      rental payment)  will be credited; the Commissioner therefore finds that 
      the complainant is indeed the first  "rent-stabilized"  occupant of the 
      subject apartment.

           The owner submitted a rental history of the apartment covering the 
      time that it has been subject to rent stabilization.  Therefore the 
      Administrator's order, finding an overcharge due to the absence of such 
      a history, must be revoked, and the tenant's fair market rent appeal-- 
      filed before April 1, 1984--processed as such.  This proceeding will 
      accordingly be remanded for that purpose, with all parties notified and 
      allowed to submit evidence,  including evidence as to whether the tenant 
      was served with the required "DC-2 notice".


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

      ORDERED, that this petition be, and the same hereby is, granted to the 
      extent of remanding the proceeding to the Rent Administrator for further 
      processing in accordance with this order and opinion.  The automatic 
      stay of so much of the Rent Administrator's order as directed a refund 
      is hereby continued until a new order is issued upon remand.  However, 
      the Administrator's determination as to the rent is not stayed and shall 
      remain in effect, except for any adjustments pursuant to lease renewals, 
      until the Administrator issues a new order upon remand.



      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner