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

          APPEAL OF                              DOCKET NO.CF410201RT
                                              :  DRO DOCKET NO.L3114766RT

                                PETITIONER    : 

               On June 3, 1988, the above-named petitioner-tenants filed a 
          Petition for Administrative Review against an order issued on May 4, 
          1988, by the Rent Administrator, 92-31 Union Hall Street, Jamaica, 
          New York, concerning the housing accommodations known as 95 St. 
          Marks Place, New York, New York, Apartment No. 5, wherein the Rent 
          Administrator determined that the owner had overcharged the tenants.

               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 

               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 tenants' filing 
          of a rent overcharge complaint and a fair market rent adjustment 
          application in March, 1984.  The tenants stated that they had 
          commenced occupancy of the subject apartment in November, 1979 at a 
          rental of $225.00 per month.

               In response to the tenants' complaint, the owner submitted a 
          complete rental history for the subject apartment up to occupancy by 
          the tenants herein.  The tenants were afforded an opportunity to 
          update their rental history and stated that their rent had been 
          increased to $247.50 pursuant to a lease commencing January 1, 1983.

               In Order Number CDR 33,276, the Rent Administrator determined 
          that the tenants had been overcharged in the amount of $520.71 
          through October 31, 1986 and determined that the lawful 
          stabilization rent for the subject apartment was $241.41 effective 
          November 1, 1982 through October 31, 1986.

               In this petition, the tenants allege in substance that they 
          signed a new lease on November 1, 1986 and that the lawful 
          stabilization rent and amount of rent overcharge due to such new 
          lease was not indicated in the Rent Administrator's order.  Further 


          the tenants allege that two months security was collected and that 
          they would like the extra month's security returned.

               The Commissioner is of the opinion that this petition should be 

               An examination of the record indicates that the tenants were 
          afforded an opportunity to update their rental history in the 
          proceeding before the Rent Administrator and did not submit the 
          November 1, 1986 lease information when it became available prior to 
          the issuance of the Rent Administrator's order.  Further the tenants 
          have not submitted a copy of the November 1, 1986 lease along with 
          their appeal.  Accordingly, the Rent Administrator's order correctly 
          ended with the rental history through October 31, 1986 and a further 
          update is not warranted.  With regard to the contention about the 
          refund of an extra security deposit, the Commissioner notes that 
          this item was not included in the tenants' original overcharge 
          complaint or in the fair market rent adjustment application and 
          cannot be considered for the first time on appeal since this is not 
          a de novo proceeding.

               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 

               The Commissioner has affirmed in this Order and Opinion that 
          the owner collected overcharges of $520.71.  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, not in 
          excess of twenty percent per month of the overcharge may be offset 
          against any rent thereafter due the owner.  Where the tenant credits 
          the overcharge, the tenant 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 


               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, and, that the order of the Rent 
          Administrator be, and the same hereby is, affirmed.


                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner



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