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

      ------------------------------------X  SJR No: 6712
      APPEAL OF                              DOCKET NO. ED610090RO

                                          :  DISTRICT RENT OFFICE
           Manuel Vagueiro,                  DOCKET NO. 19093
                                             TENANT: Bridget Barbaro          
                            PETITIONER    : 

                                     IN PART

      On April 10, 1990, the above-named owner filed a Petition for 
      Administrative Review against the above-referenced order of a Rent 
      Administrator issued on March 20, 1990, concerning the housing 
      accommodations known as 1864 Wallace Avenue, Bronx, New York, Apartment 
      1A, in which order the Administrator determined the fair market rent 
      pursuant to the special fair market guideline promulgated by the 
      New York City Rent Guidelines Board for use in calculating fair market 
      rent appeals. 

      This proceeding originated with the 1984 filing of a Tenant's Objection 
      to Rent/Services Registration in which the tenant indicated that her 
      objection was a fair market rent appeal.

      In response the owner submitted rental records, adding the comments that 
      a three-year lease had commenced on February 1, 1981 for $351 monthly, 
      that "[p]art of 1984 & 1985 [the tenant] refused the lease renewal and 
      refused the increase," that in May of 1986 a two-year lease had 
      commenced that called for $373.81 monthly, and that the tenant was 
      currently (February 15, 1990) paying $396.24.

      The ensuing order, here appealed, states inter alia: that a copy of the 
      tenant's Fair Market Rent Appeal was served on the owner, along with 
      forms to fill out, but that the owner has failed to "respond with the 
      necessary data"; that in the absence of "competent evidence . . . 
      establishing rents generally prevailing for substantially similar 
      housing accommodations in the same area," the tenant's "fair market 
      rent" will be determined solely by reference to a special guidelines 
      order promulgated by the New York City Rent Guidelines Board for use in 
      determining such rent; that the owner must "make a renewal lease offer 
      to the tenant between 120 [and] 150 days, before the old lease expires, 


      which offer the tenant must accept within 60 days if she wishes to 
      remain in occupancy; that from February 1, 1981 through April 30, 1986 
      the tenant paid $351 per month; that the owner was entitled to an "MCI" 
      rental increase effective December 1, 1986; that starting on May 1, 
      1988, the tenant paid $442.68 monthly; and that the tenant had paid 
      excess rent of $8,120.68 including excess security of $73.36 through 
      March 31, 1990.

      The instant petition to review this order states in pertinent part: (1) 
      that the owner did indeed "respond with the necessary data," as whenever 
      he "received any forms [he] would answer the forms," (2) that the 
      tenant's leases having been voluntary, binding agreements, it is "not 
      fair, 10 years later[,] to try to collect money back from the landlord," 
      (3) that the owner cannot offer a new lease because, pending the 
      resolution of "this problem," he does not know what rent to charge, (4) 
      that the tenant deposited $300 as security when she entered into 
      occupancy, and "never updated it," so that there was no excessive 
      deposit at the time of the Administrator's order and (5) that the tenant 
      actually paid the following rents (inter alia): $345 monthly in January 
      and February of 1983 and from April, 1983 through March of 1985; $339 in 
      March of 1983; $300 (having refused to sign a lease) from April 1985 
      through April 1986; and $396.24 (refusing to sign a lease) from May 1, 
      1988 to the "present."

      The tenant has answered the petition, stating in pertinent part that the 
      security deposit was indeed updated, and that if the tenant had not been 
      "paying the correct rent[,] she would have been evicted by the court."

      In December, 1992, petitioner sent the Commissioner copies of: letters 
      on the letterhead of "Zworski's Counselling and Information Services, 
      Inc.," (a) covering June, and August through December, 1984, in each of 
      which Donal Zworski, the tenant's "Legal Social Worker," stated: "Dear 
      Mr. Vagueiro: Enclosed herewith please find a money order in the amount 
      of $345.00 for [the tenant's] rent for the month of [one of the 
      aforementioned],"  (b) reflecting the enclosure of $345 for March, 1985, 
      and (c) reflecting, for the period from April, 1985, through April 1986 
      (except for August and March), the enclosure of $300 per month; and a 
      money order made payable to the owner from the tenant, dated April 3, 
      1986, in the amount of $300.

      In response to that submission, the tenant states in pertinent part: 
      "Judge Klein took $6.00 off from the rent, for Con Ed.  The rent went 
      from $351.00 to $345.00 * * * . . . Con Ed told me . . . to deduct from 
      the bill.  Mrs. [Z]wo[r]ski and myself sent Mr. Vegueiro a notice, that 
      said if he didn't disconnect the wires from my meter, that we were going 
      to deduct $45.00 fro[m] the next bill."

      In response, finally, to the previously mentioned tenant's answer to the 
      instant petition, the owner has submitted: a copy of a 1984 order of the 
      Housing Court, in an action between the owner and tenant herein, stating 
      inter alia that "[t]he rent is now $345.00 commencing February 1, 1984," 


      with an accompanying receipt covering April and May of that year; and a 
      copy of the tenant's complaint of decreased services (docket number 
      CI610480S), of September, 1988, in which the tenant reports her "current 
      rent" to be $396.24.  

      After careful consideration of the record, the Commissioner is of the 
      opinion that this petition should be granted in part.

      Petitioner's first pertinent assignment of error, as noted above, is 
      that the Administrator erred in stating that the owner had "failed to 
      respond with the necessary data."  The Commissioner, however, reads the 
      Administrator's statement as referring specifically to the comparable 
      rents method of determining "fair market rent."  The disputed language 
      means only that the owner failed to supply the evidence of other rents 
      required for the Administrator to use that method, so that the lawful 
      initial stabilized rent had to be determined, as it properly was, 
      pursuant solely to the other, "special-guidelines," method.  In saying 
      that, the Administrator did not err.

      Petitioner's next argument (number (2) on page 2 above) is an attack on 
      the concept of rent regulation, whoich has been upheld by the courts and 
      the legislature.  Simply stated, the Rent Stabilization Law does not 
      provide for the approval of a rental amount merely because it is 
      embodied in a voluntarily signed lease.  Rather all rent increases must 
      be in accordance with rent stabilization guideline.

      Turning to petitioner's contention that he cannot offer a lease because 
      he does  not know what to charge therein, the Commissioner finds no 
      merit in that argument.  The correct procedure was to roll back the 
      rent, forthwith, to the level determined by the Administrator, pending 
      any later adjustment by the Commissioner pursuant to the owner's 

      Regarding the security deposit, the tenant contests petitioner's 
      assertion that the amount actually deposited was never raised, renewal 
      leases recite that it was increased, and petitioner provides no 
      substantiation for his statement that it never rose above $300.  The 
      Commissioner will therefore deem security to have been deposited in the 
      amount of the highest monthly rent that the tenant actually paid.

      Petitioner finally quarrels with the Administrator's excess rent 
      calculation, his basic argument being that the rents the tenant actually 
      paid were appreciably lower than what the leases reflect, resulting in 
      an inflated excess rent total.  Petitioner is correct.  The tenant's own 
      statements reflect rental decreases in 1984 and "85 - 86," to $345 and 
      $300, respectively.  In response to petitioner's extensive 
      documentation, summarized above, of his assertions regarding rents paid, 
      the tenant reconfirmed (see page 2 above) that the rent indeed went from 
      $351 to $345, and that later she threatened to deduct another $45 

      Based on the above, and specifically on the quoted notation in the 


      aforementioned Housing Court order, the attached calculation chart -- 
      hereby incorporated in this Order and Opinion -- reflects a monthly rent 
      of $345 starting in February, 1984 (there being no verification of an 
      earlier date).  It does not reflect that the tenant only paid $339 in 
      March of 1983, as the record contains no basis for petitioner's 
      assertion in that regard.  The chart does reflect a $300 rental from 
      April, 1985, through April, 1986, the tenant herself having adverted to 
      same and petitioner having documented it.  

      The chart finally reflects an actual rental of $442.68 from May through 
      August of 1988, and a decrease to $396.24 for the remainder of the 
      period covered by the Administrator's order.  

      The owner mentioned $396.24 in his original answer to the complaint and 
      has again in this petition; the tenant has not specifically denied 
      paying that amount, and she herself reported it as her rental in the 
      aforementioned services complaint.  The record, however, provides no 
      basis for determining that she paid it before September of 1988.

      For the reasons stated above, the amount of excess rent found herein 
      differs from that found by the Administrator.

      In the event the owner does not take appropriate action to comply with 
      this order within sixty (60) days from the date of issuance of this 
      order, the tenant may credit the excess rent collected by the owner 
      against the next month(s) rent until fully offset.

      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 

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

      ORDERED, that this petition be, and the same hereby is, granted in part 
      and that the Rent Administrator's order be, and the same hereby is 
      modified in accordance with this order and opinion.  The total amount of 
      excess rent through March 31, 1990 is $8,074.20.



                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner


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