EF 410074 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  S.J.R. Nos. 5874 and 5882
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NO. EF 410074 RO

                                          :  DISTRICT RENT ADMINISTRATOR'S
           Joshua Tauber,                    DOCKET NO. AE 410369 R
                                             
                                             TENANT: Susan Freidman

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

              ORDER AND OPINION AFFIRMING COMMISSIONER'S PRIOR ORDER
               AND OPINION AND REMANDING PROCEEDING TO THE DISTRICT
                                RENT ADMINISTRATOR

      On June 14, 1990, the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on May 10, 1990, by the 
      District Rent Administrator, Gertz Plaza, 92-31 Union Hall Street, 
      Jamaica, New York, concerning the housing accommodations known as 
      14 West 88th Street, New York, New York, Apartment No. 3-B, wherein the 
      District Rent Administrator determined that the tenant had been 
      overcharged.

      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.  

      This proceeding was originally commenced on May 20, 1986 by the filing 
      of an overcharge complaint.  The tenant asserted that she took occupancy 
      of the subject apartment as a subtenant and that the prime tenancy was 
      illusory.  Included in the submissions was a communication from the 
      prior tenant to the complainant-tenant advising the complainant of the 
      date she vacated the subject apartment and supplying the complainant 
      with a copy of the "renewal" lease in effect when she vacated the 
      subject apartment.

      In answer the owner asserted that the complainant was a subtenant of a 
      M. Keitel and had no right to challenge the rent.




      In the Administrator's order of May 10, 1990, the Administrator 
      determined that the prime tenancy was illusory. Based on the April, 1984 












          EF 410074 RO

      initial registered rent of $435.79, the Administrator determined that 
      the tenant had been overcharged in the amount of $95,812.75, including 
      treble damages, and directed the refund of this amount to the tenant.

      The owner filed a petition for administrative review of that order.  The 
      owner alleged that the tenant of record of the subject apartment on the 
      base date (R. Gatsik) was a rent controlled tenant; that the first 
      tenant after the rent controlled tenant was M. Keitel, who was charged 
      a fair market rent; that, alternatively, if the DHCR chooses to consider 
      the complainant tenant the first tenant to take occupancy after the rent 
      controlled tenant, the tenant's complaint should have been treated as a 
      fair market rent appeal.

      In an order and opinion issued on May 30, 1991, the Commissioner found 
      that the owner had produced no evidence to refute the finding of 
      illusory prime tenancy.  Based on agency records, the Commissioner 
      further determined that the prior tenant (R. Gatsik) was a rent 
      controlled tenant, and that since the complainant-tenant was the first 
      stabilized tenant to occupy the subject apartment after the rent 
      controlled tenant, the proceeding should have been remanded to the 
      Administrator for processing as a fair market rent appeal.

      Subsequent thereto, the tenant filed a petition in the Supreme Court 
      pursuant to Article 78 of the Civil Practice Law and Rules, challenging 
      the Commissioner's order.  By order of Justice Frances Pecora dated 
      January 8, 1992, the proceeding was remitted to DHCR for further 
      processing.

      The tenant thereafter filed a motion in the Supreme Court to compel the 
      DHCR to render a determination in this proceeding.  By stipulation of 
      settlement between the parties dated November 4, 1992, the DHCR was 
      required to render a determination of the owner's administrative appeal 
      on or before February 4, 1992.

      The basis for the court remit of this proceeding for further processing 
      was that certain evidence submitted by the tenant had not reached the 
      file; namely, an affidavit of the prior tenant (R. Gatsik) dated July 
      23, 1990.  In this affidavit the prior tenant stated that he took 
      occupancy of the subject apartment in 1976 and always believed that the 
      apartment was rent stabilized and not rent controlled.  This belief was 
      further bolstered by the fact that subsequent leases were labeled as 
      "renewal" leases subject to the Rent Stabilization Law and Code.  






      Additionally, the complainant-tenant asserts that since the prior tenant 
      took occupancy after July 1, 1974 the subject unit must have been rent 
      stabilized as a result of vacancy decontrol.  Further, the tenant noted 
      that the owner's actions were all indicative of rent stabilized housing.  






          EF 410074 RO

      In addition to issuing "renewal" leases, the owner also registered the 
      subject apartment as rent stabilized in the initial apartment 
      registration of 1984.

      The Commissioner is of the opinion that the earlier order and opinion of 
      the Commissioner dated May 30, 1991 which remanded the proceeding for 
      processing as a fair market rent appeal should be affirmed.

      In the earlier order and opinion the Commissioner determined that DHCR 
      records included a rent control Order Determining Facts or Fixing 
      Maximum Rent pursuant to Section 36 of the Regulations for the subject 
      apartment dated October 15, 1976 (Docket Number 2AR21568 - 2AR21577) 
      which listed the tenant as R. Gatsik and determined that the subject 
      apartment was subject to rent control as of the date of occupancy of 
      that the tenant and established the maximum rent at $350.00 per month.  
      This order was modified by the subsequent Order of Modification or 
      Revocation (Docket Number 2R 111751-760) which also listed Gatsik as the 
      rent controlled tenant.  The Commissioner therefore found that the prior 
      tenant, R. Gatsik, was a rent controlled tenant and that the 
      Administrator erred in utilizing the prior tenant's April 1, 1984 rent 
      as the rent stabilization base rent.  Accordingly, the Commissioner 
      ordered that the case be remanded to the Administrator for processing as 
      a fair market rent appeal.

      The Order Determining Facts or Fixing Maximum Rent (Docket Number 
      2AR21568-2AR21577) was a final order of the Commissioner determining the 
      status of the subject apartment.  No protest was filed by either party.  
      Similarly, no protest was filed by either party against the subsequent 
      Order of Modification or Revocation.  

      The affidavit from the prior tenant indicates that the prior tenant 
      believed that he resided in a rent stabilized apartment.  However, the 
      legal statutory status of the subject apartment was determined by the 
      rent control orders.  The Commissioner therefore affirms his prior 
      finding that the prior tenant was rent controlled and that the 
      proceeding should be remanded for processing as a fair market rent 
      appeal.

      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 the proceeding be, and the same hereby is, remanded to the District 
      Rent Administrator for further processing in accordance with this order 
      and opinion.  The automatic stay of so much of the District 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:












          EF 410074 RO




                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner
    

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