EC210045RO

                                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  S.J.R. 6718
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NO. EC210045RO

                                          :  DISTRICT RENT OFFICE
           Beach Haven Apts.,                DOCKET NO. DH210063RP
                                             
                                             TENANT: Leonid Bukhgalter        
                   

                            PETITIONER    : 
      ------------------------------------X                             

           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                                         
      On March 9, 1990, the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on March 1, 1990, by a 
      Rent Administrator concerning the housing accommodations known as       
      557 Avenue Z, Brooklyn, New York, Apartment No. 5J, wherein the Rent 
      Administrator determined that the owner had overcharged the tenant.

      Subsequent thereto, the petitioner owner filed a petition in the Supreme 
      Court pursuant to Article 78 of the Civil Practice Law and Rules in the 
      nature of mandamus seeking an expeditious determination of the 
      administrative appeal.

      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 
      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 by the filing of a rent 
      overcharge complaint by the tenant who stated that he assumed occupancy 
      pursuant to a two year lease commencing on August 1, 1983 at a rent of 
      $450.00 per month.


      In answer to the complaint, the owner denied that there was an 
      overcharge and submitted rent ledgers dating from 1979.
      In Order Number K0009962R, issued on November 12, 1986, the Rent 
      Administrator determined that there was no overcharge as based upon the 












          EC210045RO

      tenant's failure to file a timely objection to the registered rent.  The 
      tenant filed a petition for administrative review of that order wherein 
      the tenant contended that he did file a timely objection on a form 
      provided him by the Brooklyn DHCR office, but that it was the incorrect 
      form; however, the tenant then refiled on the proper form, which was 
      timely received by the DHCR in July, 1984.  On August 17, 1989, the 
      Commissioner issued an Order and Opinion under DRO number AL210184RT, 
      which revoked the Administrator's order and remanded the proceeding for 
      processing as a timely objection to the registered rent.

      In Order Number DH210063RP, issued on March 1, 1990, the Administrator 
      determined that the tenant had been overcharged in the amount of 
      $2,178.21, including interest, through the lease term ending on July 31, 
      1989, at a lawful rent of $504.47.  The order had commenced with the 
      lease term commencing on October 1, 1980.

      In its petition the owner contends that it was improper for the 
      Administrator to review the rent as far back as 1980 since the court 
      decision in JRD Management v. Eimicke restricts the owner's obligation 
      to produce rent records to four years.  Petitioner argues that because 
      the order ended with the lease which terminated on July 31, 1989, it 
      could not review the rent farther back than August, 1985.

      The tenant's answer disputes this interpretation of the J.R.D. decision, 
      and the statute, and supports the scope of review in the Administrator's 
      order.

      The Commissioner is of the opinion that this petition should be denied.

      Section 2526.1(a)(3)(ii) of the Rent Stabilization Code provides that as 
      to complaints filed within 90 days of the initial registration of a 
      housing accommodation, the legal regulated rent for purposes of 
      determining an overcharge shall be deemed to be the rent charged and 
      paid on April 1, 1980, or for a housing accommodations not required to 
      be registered by June 30, 1984, four years prior to the date the housing 
      accommodation was first required  to be registered (or if the housing 
      accommodation was subject to the RSL and this Code for less than four 
      years prior to such initial registration, the initial regulated rent) 
      plus in each case, any lawful increase and adjustments.

      The order appealed herein was issued pursuant to the revocation of a 
      prior order by the Commissioner and the remanding of the proceeding to 
      be processed as a timely challenge to the initial registered rent.  The 
      Commissioner's order and opinion had found that the March 6, 1985 
      overcharge complaint was timely, as based on an earlier filing by the 
      tenant which was returned to him by the DHCR but which was subsequently 
      timely refiled by the tenant.

      In the order, the Administrator deemed the base date rent to be the rent 
      charged on October 1, 1980, even though the April 1, 1980 rent was 
      documented in the record.  However, since the tenant has not filed a 
      petition, the Commissioner accepts the use of the October 1, 1980 rent 






          EC210045RO

      as the base rent.

      The Commissioner further finds that the petitioner's reliance upon the 
      JRD decision is incorrect, since the case has no applicability to 
      overcharge proceedings that were filed after April 1, 1984, as was the 
      instant proceeding, and that even under that decision, April 1, 1980 
      would be the proper base date.  Furthermore, the use of the October 1, 
      1980 rent as base rent excepted, the Administrator properly determined 
      the lawful rent and the amount of overcharges in each lease term 
      thereafter, in accordance with the amounts listed in the guidelines.  
      Accordingly, the owner's objection to the Administrator's order is 
      without merit.

      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 or not 
      in excess of twenty percent per month thereof may be offset against any 
      rent thereafter due the owner.

      THEREFORE, pursuant to the Rent Stabilization Law and Code, it is

      ORDERED, that this Petition be, and the same hereby is denied; and that 
      the Rent Administrator's order be, and the same hereby is, affirmed.

      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner






    

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