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

     APPEAL OF                              DOCKET NO.: DA 410075-RO
                                            DRO DOCKET NO.: CDR 34,374


     On January 17, 1989, the above named petitioner-owner filed a Petition for 
     Administrative Review against an order issued on December 16, 1988, by the 
     Rent Administrator, 10 Columbus Circle, New  York,  New  York,  concerning
     housing accommodations known as Apartment 9B, 350 West  57th  Street,  New
     York, New York, wherein the Rent Administrator determined  that  the  rent
     exceeded the fair market rent and ordered a refund of $10,913.33 in excess 
     rent, including excess security.

     The Commissioner notes that this proceeding was initiated 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 Commissioner has reviewed all of the evidence in the  record  and  has
     carefully considered that portion of the record  relevant  to  the  issues
     raised by the administrative appeal.

     The tenant commenced this proceeding on February 17,  1984  by  filing  an
     overcharge complaint and a Fair Market Rent Appeal  (FMRA)  with  the  New
     York City Conciliation  and  Appeals  Board  (CAB),  the  agency  formerly
     charged  with  enforcing  the  Rent  Stabilization  Law,  based  in  part,
     respectively, on an alleged failure by  the  owner  to  provide  a  rental
     history and on the  allegation  that  the  Initial  Legal  Regulated  Rent
     exceeded the fair market rent for the subject apartment.

     On August 10, 1984, under docket number TC 082703-G, the owner was sent an 
     answer  form  for  the  tenant's  overcharge  complaint  which  the  owner
     returned, stating therein  that  the  complaining  tenant  was  the  first
     stabilized tenant.  Accordingly, all other processing dealt only with  the
     tenant's FMRA.  However the Administrator neglected to  explicitly  either
     dismiss that overcharge complaint or consolidate it with the FMRA.

     On May 7, 1984 the tenant's FMRA was served on the owner and the owner was 
     informed that the fair market rent would be determined by a two-pronged 


          DOCKET NUMBER: DA 410075-RO
     approach, i.e., a special rent guidelines order for fair market rents 
     issued by the Rent Guidelines Board, and a comparability  study  of  rents
     generally  prevailing  in  the  same  area   for   substantially   similar
     apartments.  The owner was informed that "[c]omparable rents  may  not  be
     considered unless you furnish all of  the  information  required  on  [the
     attached] Schedules A and B."

     The owner was given twenty-one days to submit the comparability  data  and
     advised that failure to do so would result in the fair market  rent  being
     determined solely by the special rent guidelines.

     The owner failed to submit the requested data.

     On July 27, 1987 the owner was sent a notice which stated that it  was  in
     response to a request by the owner to have the comparability  study  based
     on rents charged after July 1, 1974.  The owner was advised  that  to  use
     that method the "enclosed" forms must be used.

     In a letter dated August 14, 1987, the owner acknowledged receipt  of  the
     July 27, 1987 notice, but stated that the  form  had  not  been  requested
     according to its records.  The owner asked that a copy of the referred  to
     request be sent to the owner.  The owner submitted  no  rental  data  with
     this letter, nor did the owner state that the forms  referred  to  in  the
     July 27, 1987 notice had not been received.

     In a letter dated September 10,  1987  the  owner  confirmed  a  telephone
     conversation with the Administrator the preceding day regarding  the  July
     27, 1987 notice, and requested that the forms referred to in  the   notice
     be forwarded, as they were allegedly not enclosed with the notice.

     The record shows that on September 17, 1987 a "second set"  consisting  of
     the notice and comparable rent forms was sent to the owner.   No  response
     was received.

     On April 28, 1988 a "Summary Notice" was sent to the  owner  stating  that
     had the subject apartment remained under rent  control  the  1978  Maximum
     Rent for the apartment would have been $520.94 and that  the  fair  market
     rent for the subject apartment would be based on  the  1978  Maximum  Rent
     increased by the Special Fair Market Rent Guidelines order.  The owner was 
     given ten days to comment.  Again, no response was received.

     In order  number  CDR  34,374,  herein  under  review,  the  Administrator
     determined the fair market rent to be $625.13 based  solely  on  the  1978
     Maximum Base Rent  of  $520.94,  increased  by  20%  pursuant  to  Special
     Guidelines Order Number 11.  Thus, the actual stabilized rent  of  $768.06
     charged the complaining tenant in 1979 was found to have exceeded the fair 
     market rent by $142.93, resulting in $10,913.33 in excess rent and  excess
     security being collected from December 1, 1979 through May 31, 1986.

     In this petition, the owner contends that the Rent  Administrator's  order
     is incorrect and should be modified  because  the  owner  replied  to  the
     tenant's overcharge complaint.   In  addition,  the  owner  described  the
     above-stated correspondence regarding the  alternate  comparability  study
     and the forms therefor, including the fact that the  owner  had  requested
     "that all necessary papers [for the comparability study]  be  directed  to
     the attention of the 'undersigned."  The owner attached a purported copy 

          DOCKET NUMBER: DA 410075-RO
     of a DC-2 notice allegedly served on the tenant by the  "previous  agents"
     and a copy of the Landlord's Report of Statutory Decontrol (Form R-42).

     After  the  above  recitation  and  list  of  attachments,  the   petition
     concludes: "Notwithstanding the  aforementioned,  landlord  respect[fully]
     request[s] the  opportunity  to  submit  the  apartment  comparability  as
     previously extended.  Should additional information or  any  questions  be
     necessary, please direct same to the attention of the writer."

     Nowhere in the petition does the owner allege that it did not receive  the
     comparability forms after requesting them from the  Administrator  in  its
     September 10, 1987 letter.

     In answer to this petition, the tenant contends that the order  should  be
     upheld because the owner was given the opportunity to submit comparability 
     data and failed to do so even after being notified that the FMRA would  be
     determined solely on the basis of the 1978 Maximum Base Rent  of  $520.94.
     The tenant contends that the owner failed to point out any error  in  fact
     or law in the Administrator's order, although requested to do so  in  part
     fourteen of the Administrative Review form.

     In a letter dated March 30, 1989, the  owner  responded  to  the  tenant's
     answer to the petition.  In the  response,  the  owner  alleges  that  its
     letters of August 14, 1987 and September 10, 1987 show  that  it  did  not
     fail to submit the requested  data.   (As  stated  above,  these  letters,
     respectively, request a copy of the  owner's  request  for  a  alternative
     comparability study; and request the forms for that study.  Neither letter 
     included any comparability data.)

     In addition, the owner alleges that the April 28,  1988  "Summary  Notice"
     (which gave the owner 10 days to respond to the Administrator's  statement
     that the FMRA would be decided on the basis of the 1978 Maximum Rent)  was
     not received by the owner.  Furthermore, the owner noted that  its  letter
     dated September 10, 1987 advised the Administrator to  direct  all  future
     correspondence to "the undersigned" i.e., to  a  Mrs.  Walsh.   The  owner
     again submits the  DC-2  and  R-42  forms,  described  above,  which  were
     submitted with its petition.  

     The Commissioner is of the opinion that this petition should be denied and 
     the Administrator's order should be modified.

     At the outset, the  Commissioner  notes  that  the  DC-2  notice  was,  in
     general, to be  served  by  an  owner  by  certified  mail  on  the  first
     stabilized tenant after vacancy decontrol.  The form notifies  the  tenant
     of the 1974 Maximum Base Rent of  the  subject  apartment  and  gives  the
     tenant 90 days in which to file a FMRA. The DC-2  form  submitted  by  the
     owner is dated April 28, 1980 and states  the  1974  Maximum  Rent  to  be
     $387.79.  The place left for the signature of the owner or  principal  has
     the typed name of the prior agent but no signature.   The  only  proof  of
     mailing for this form is a copy of a blank "receipt for  certified  mail,"
     i.e., a receipt stating no address, no fee, and no date.  Accordingly, the 
     Commissioner finds that the tenant was not time-barred from filing a  FMRA
     in 1984.  [The R-42 form, Landlord's Report of  Statutory  Decontrol,  was
     properly filed (and signed) in 1980,  but  such  form  neither  informs  a
     tenant of his or her right to file a FMRA nor  does  it  create  any  time
     limitation on a tenant's right to file a FMRA.]

          DOCKET NUMBER: DA 410075-RO
     As noted above, the petitioner  has  not  alleged  that  no  response  was
     received after the owner requested in its September 10, 1987  letter  that
     it be sent certain forms to complete the comparability study.  Nor did the 
     owner  allege  that  the  July  27,  1987  notice  regarding   alternative
     comparability was the first knowledge that the owner had  of  the  pending
     FMRA.  Indeed, the fact that the owner merely asked  for  a  copy  of  the
     request and forms referred to in the Administrator's July 27, 1987  Notice
     clearly shows that the owner had prior knowledge of the FMRA.  The  record
     shows that comparability forms were sent to the owner on May 7,  1984  and
     July 19, 1985 with copies of the tenant's FMRA.  The July 27, 1987  notice
     also stated that alternate  comparability  forms  were  attached  thereto.
     When notified by the owner that the alternate forms were not  attached  to
     the July 27, 1987 notice, the Administrator  sent  an  additional  set  of
     alternate comparability forms to the owner.  All mailings,  including  the
     Summary Notice, which  the  owner  denies  receiving,  were  sent  to  the
     managing agent corporation correctly addressed.  None of the mailings were 
     returned as undelivered.  The owner responded to at least three  of  these
     mailings: the overcharge complaint, the July  27,  1987  notice,  and  the
     Administrator's order, even though  none  of  those  three  mailings  were
     directed to the attention of Mrs. Walsh.  The Commissioner does  not  find
     it credible that a document relating to a pending  proceeding  before  the
     DHCR, correctly addressed to the corporate  agent,  a  major  real  estate
     management company, will not be  received  because  not  directed  to  the
     attention of a Ms. Walsh, who works in the  "Renting  Department"  of  the
     corporation, and who  uses  the  corporate  letterhead  showing  the  same
     address.  Therefore, to the extent that this appeal  is  grounded  on  the
     unstated allegation that the petitioner was not given the  opportunity  to
     submit comparability data to the Administrator, it is hereby denied.

     On the other hand,  the  Commissioner  notes  that  the  petition  states:
     "Notwithstanding the aforementioned,  Landlord  respect[fully]  request[s]
     the opportunity  to  submit  the  apartment  comparability  as  previously
     extended."  Taken literally, this statement is not an allegation that  the
     owner was in any way denied due process, but is merely a request that  the
     owner be given yet another opportunity to submit the  comparability  data.
     As such, the tenant is correct that the owner has not alleged an error  in
     law or fact and the petition must be denied for that reason.

     The owner is directed to refund over a period  not  exceeding  six  months
     from the date of this order, any rent paid by the tenant herein in  excess
     of the lawful stabilized rent, as well as any security deposit  in  excess
     of one month's rent.

     In the event the owner does not take appropriate action to  comply  within
     the period in which the owner  may  institute  a  proceeding  pursuant  to
     Article Seventy-eight of the Civil Practice Law and Rules, the tenant  can
     proceed against the owner in a court of competent jurisdiction.

     Finally, the Administrator's order  is  hereby  modified  to  dismiss  the
     tenant's overcharge complaint, docket number TC-082703-G, which was 


          DOCKET NUMBER: DA 410075-RO
     tacitly consolidated with the tenant's FMRA.  Since  the  tenant  was  the
     first stabilized tenant, the proceedings  were  properly  processed  as  a

     THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
     ORDERED, that this petition be, and the same hereby  is,  denied  and  the
     Rent Administrator's order  be,  and  the  same  hereby  is,  affirmed  as
     modified herein.


                                     ELLIOT SANDER
                                     Deputy Commissioner

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