DA 410067 RO; DB 410114 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
      APPEALS OF                             DOCKET NOS. DA 410067 RO
                                                         DB 410114 RO

                                          :  DISTRICT RENT OFFICE
           310 West Realty Company,          DOCKET NOS. CA 410061-RP
                                                                              
                   
                                             TENANT: Eileen Zients Douglas
                                                        Israel
                               PETITIONER : 
      ------------------------------------X                             

          ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW


      On January 17, 1989, the above-named petitioner-owner filed a Petition 
      for Administrative Review against an order issued on December 15, 1988, 
      by the Rent Administrator, 10 Columbus Circle, New York, New York, 
      concerning the housing accommodations known as 310 West End Street, 
      New York, New York, Apartment No. 4B, wherein the Rent Administrator 
      determined that the owner had overcharged the tenant.  On February 1, 
      1989 the owner filed an amended petition against the aforementioned Rent 
      Administrator's order.

      The Commissioner notes that this proceeding was filed prior to April 1, 
      1984.  Sections 2526.1 (a) (4)  and 2521.1 (d) of the Rent Stabilization 
      Code (effective May 1, 1987) governing rent overcharge and fair market 
      rent proceedings provide that determination of these matters be based 
      upon the law or code provisions in effect on March 31, 1984.  Therefore, 
      unless otherwise indicated, reference to Sections of the Rent 
      Stabilization Code (Code) contained herein are to the Code in effect on 
      April 30, 1987.

      The Administrative Appeals are being determined pursuant to the 
      provisions of Section 42A of the former 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 appeals.  

      This proceeding was originally commenced in February 1984 by the filing 
      of a ren overcharge complaint by the tenant who took occupancy of the 
      subject apartment on March 1, 1976 at a rental of $550.00 per month.


      In response to the tenant's complaint, the owner stated in substance 
      that the tenant herein was the first rent stabilized tenant, submitted 







          DA 410067 RO; DB 410114 RO

      a rental history from March 1, 1976 and a copy of a report of statutory 
      decontrol indicating that the subject apartment became vacant in 
      February 1976 and was rented to the first rent stabilized tenant (the 
      tenant herein) on March 1, 1976.

      In response to the owner's answer, the tenant stated in substance that 
      the subject apartment had first become decontrolled in 1968 and 
      submitted a copy of rent control records to that effect.

      In Order Number TC 082960-G, issued on October 10, 1986, the Rent 
      Administrator determined that there was a rent overcharge due to the 
      owner's failure to submit a complete rental history.  On November 15, 
      1986 the owner appealed this order under docket number AK 410611 RO and 
      the Commissioner issued an order remanding the proceeding affording both 
      parties an opportunity to submit additional evidence.  The tenant 
      submitted a statement from prior tenant Gerald B. Lefcourt to the effect 
      that he was a tenant in the subject apartment until the fall of 1974 and 
      for several years prior thereto and had always been treated as a rent 
      stabilized tenant.  The owner failed to submit any additional evidence 
      on the merits although afforded an opportunity to do so.

      In Order Number CA-410061-RP, the Rent Administrator determined that due 
      to the owner's failure to submit a complete rental history, the owner 
      had collected a rent overcharge of $10,347.47 including interest on that 
      portion of the overcharge occurring on and after April 1, 1984.

      In its original petition, the owner contends in substance that the Rent 
      Administrator's order incorrectly relies on the Omnibus Housing Act 
      passed in 1983; that the Rent Administrator failed to consider all of 
      the owner's previously submitted evidence; that the tenant's complaint 
      filed in 1984 should be time barred by the Statute of Limitations; that 
      the default method used by the Rent Administrator was arbitrary and 
      capricious and that the prior Rent Administrator's order issued on 
      October 10, 1986 had listed the March 1, 1983 rent as $659.30.

      In its amended petition, the owner contends in substance that it has now 
      discovered documentation showing that a prior tenant Karen Podell had 
      occupied the subject apartment between 1974 and 1976 at a rental of 
      $550.00 - the same rent as the tenant herein initially paid.  In support 
      of this contention the owner submitted a January 14, 1976 rent ledger 
      listing Karen Podell as the tenant with an original deposit of $550.00.

      The Commissioner is of the opinion that these petitions should be 
      denied.

      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 to date and produce them to the DHCR upon demand.  If the 
      apartment was decontrolled from the Rent Control Law after June 30, 
      1974, the owner must provide satisfactory documentary evidence of the 
      apartment's date of decontrol.



      In the instant case, the owner has not provided a complete rental 
      history as mandated by Section 42A.  It is noted that in the proceeding 
      before the Rent Administrator, the owner claimed that the tenant herein 
      was the first rent stabilized tenant.  However rent control records for 


          DA 410067 RO; DB 410114 RO

      the subject apartment indicated that the subject apartment was 
      decontrolled in 1968 under docket 2 ADL2207.  In addition the tenant 
      submitted evidence indicating that she was not the first rent stabilized 
      tenant.  Moreover in its amended appeal, the owner now claims that a 
      prior rent stabilized tenant did occupy the subject apartment but again 
      did not submit sufficient proof of a rental history from the base date.  
      Further, the owner gave no reasonable explanation as to why this 
      evidence was not submitted in the proceeding before the Rent 
      Administrator and since this is not a de novo proceeding it cannot 
      properly be considered for the first time on appeal.

      With regard to the owner's other contentions, it is noted that the Rent 
      Administrator's order does not rely on the Omnibus Housing Act but on 
      the Rent Stabilization Law and Code in effect prior thereto; that all of 
      the owner's submissions in the proceeding before the Rent Administrator 
      were considered; that the tenant's complaint of rent overcharge was not 
      time barred by the Statute of Limitations; that the default method used 
      by the Rent Administrator to set the tenant's initial rent was correct 
      and in accordance with standard procedure; and that both the Rent 
      Administrator's prior order and the order appealed herein listed the 
      March 1, 1983 legal regulated rent for the subject apartment as $659.30.

      The evidence of record discloses that the tenant has now vacated the 
      subject apartment.

      Accordingly, the Rent Administrator's order establishing the lawful 
      stabilization rent utilizing the Section 42A default procedure and 
      finding a rent overcharge was warranted.

      Because this determination concerns lawful rents only through           
      February 28, 1986, the owner is cautioned to adjust subsequent rents to 
      an amount no greater than that determined by the Rent Administrator's 
      order plus any lawful increases, and to register any adjusted rents with 
      this order and opinion being given as the explanation for the 
      adjustment.

      This order may, upon the expiration of the period in which the owner may 
      institute a proceeding pursuant to Article 78 of the Civil Practice Law 
      and Rules, be filed and enforced in the same manner as a judgment.

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

      ORDERED, that these petitions for administrative review be, and the same 
      hereby are, denied, and, that the order of the Rent Administrator be, 
      and the same hereby is, affirmed.

      ISSUED:
                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner