EA 410078 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.: EA 410078 RO

           Wavecrest Management Team, Ltd,   DRO DOCKET NO.: 59316

                                             TENANT: Mohamed Basha            
                           PETITIONER    
      ------------------------------------X                             


           ORDER AND OPINION REMANDING PROCEEDING TO THE ADMINISTRATOR



      On January 9, 1990, the above-named petitioner-owner filed a Petition 
      for Administrative Review against an order issued on December 5, 1989, 
      by the Rent Administrator, Gertz Plaza, Jamaica, 
      New York, concerning the housing accommodations known as 930 St. 
      Nicholas Avenue, New York, New York, Apartment No. 28, wherein the Rent 
      Administrator determined that the owner had overcharged the tenant.

      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 appeal.  

      This proceeding was originally commenced in January 1986 by the filing 
      of a rent overcharge complaint by the tenant.  The tenant took occupancy 
      pursuant to a lease commencing March 1, 1985 and expiring February 28, 
      1986 at a monthly rent of $450.00.  

      In Order Number  59316, the Rent Administrator determined the lawful 
      stabilized rent based upon the owner's failure to answer the tenant's 
      complaint; determined that the tenant had been overcharged in the amount 
      of $24,609.96, including treble damages; and directed the owner to 
      refund such overcharge to the tenant.  The Administrator further 
      determined that the owner would not be entitled to any rent increases 
      until service of the initial apartment registration on the tenant.

      In this petition, the owner contends in substance that there was no 
      default as it sent in an answer to the proceeding dated July 31, 1989 by 
      certified mail.  The owner submitted a copy of a certified mail receipt 
      indicating mailing of this answer to the DHCR on July 31, 1989 and a 
      return receipt indicating receipt by the DHCR on August 3, 1989.  The 
      owner's answer indicates that the tenant was the first tenant to occupy 
      the subject apartment following decontrol and that the owner filed an 
      initial registration (RR-1 form) with DHCR and served a copy upon the 







          EA 410078 RO

      tenant.  The owner's answer indicates that a copy of the initial 
      apartment registration was enclosed.  The owner submits with its 
      petition a copy of the initial registration dated January 25, 1985 with 
      a signed acknowledgement that it was received by the tenant.  The owner 
      also submits an affidavit from the prior managing agent stating that he 
      executed a lease with the tenant on January 25, 1985 and at that time 
      served the tenant with the RR-1 form, receipt of which was acknowledged 
      by the tenant on the owner's copy.

      In answer to the owner's petition, the tenant contends that the 
      signature on the RR-1 form submitted by the owner is not his; that he 
      signed his lease in March, 1985, not January, 1985; and that the 
      Administrator's order is correct and should be affirmed.

      In reply to the tenant's answer, the owner asserts that the tenant's 
      signature on the RR-1 is the same as on the lease, both of which were 
      signed on January 25, 1985.  The owner notes that on line 11 of the 
      tenant's objection the tenant states the total number of rooms in the 
      apartment indicated on the initial registration as 5 rooms, which 
      information would have been derived from the registration form.
       
      The Commissioner is of the opinion that this petition should be remanded 
      to the Administrator for further processing.

      An examination of the records in this case discloses that the owner is 
      correct in its contention that it submitted an answer to the proceeding 
      which was apparently not received or considered by the Administrator.  
      This answer included a copy of the apartment registration form with the 
      alleged acknowledgement of receipt by the tenant.  The tenant stated in 
      his objection and in answer to the owner's petition that he never 
      received the initial registration and denied that the signature on the 
      owner's copy of the form is his.  It is noted that during the proceeding 
      before the Administrator the tenant submitted a copy of the initial 
      registration which is exactly the same as the owner's copy in all 
      respects except that it does not have the tenant's signed 
      acknowledgement.  The Commissioner finds that there is a factual dispute 
      as to the issue of service of the initial registration form.   
      Accordingly, the Commissioner finds that the proceeding should be 
      remanded to the Administrator for further processing, including a 
      hearing, if warranted, to determine if the tenant was properly served 
      with the initial apartment registration.  If the Administrator 
      determines that that registration form was served properly, the tenant's 
      complaint should be dismissed as untimely.  If the Administrator 
      determines the registration statement was not served, the complaint 
      should the processed further and the owner should be given an 
      opportunity to prove the date of decontrol in order for the 
      Administrator to determine if the tenant's complaint should be processed 
      as a fair market rent appeal or as an overcharge complaint.

      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, granted to the extent of remanding this proceeding to the 
      Rent Administrator for further processing in accordance with this Order 


          EA 410078 RO

      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
                                      Acting Deputy Commissioner






    

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