EJ 210385 RO

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

      APPEAL OF                              DOCKET NO. EJ 210385 RO

                                          :  DISTRICT RENT OFFICE
           Gino Catudella,                   DOCKET NO. ZBK 210482 R
                                             TENANT: Rose Anne Kozlowsky      
                               PETITIONER : 


      On October 26, 1990, the above-named petitioner-owner filed a Petition 
      for Administrative Review against an order issued on October 10, 1990, 
      by the Rent Administrator, Gertz Plaza, Jamaica, New York, concerning 
      the housing accommodations known as 8784 Bay 16th Street, Brooklyn,
      New York, Apartment No. 1L, wherein the Rent Administrator determined 
      that the owner had overcharged the tenant.

      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 

      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 in November 1987.  The owner was 
      served with a copy of the tenant's complaint and submitted a rental 
      history as required.  The owner also stated that he had made 
      expenditures totalling $15,200 for improvements in the subject apartment 
      and was entitled to a rent increase for same.  The owner submitted 
      copies of a contractor's statement and incomplete bills for work done in 
      the subject building.  The DHCR directed the owner to submit copies of 
      cancelled checks and bills showing the cost and date the improvements 
      were made and to submit proof that the subject apartment was properly 
      registered for 1985, 1986, 1987 and 1989.  The owner did not submit the 
      aforementioned evidence as directed.  

      In Order Number ZBK 210482 R, the Rent Administrator established the 
      lawful stabilized rent as $400.00 effective October 15, 1987, determined 
      that the tenant had been overcharged and directed a refund to the tenant 
      of $16,598.00 including treble damages on overcharges collected on and 
      after April 1, 1984.  The Rent Administrator did not allow any rent 
      increase for the improvements since they were not properly substantiated 
      and froze the rent at $400.00 per month through October 15, 1990 since 

          EJ 210385 RO

      the owner failed to register the subject apartment from 1985 through 

      In this petition, the owner contends in substance that he is entitled to 
      a rent increase for the improvements and requests a physical inspection 
      so that the work performed may be verified by the DHCR and that he 
      couldn't supply cancelled checks before as he didn't yet have them.  In 
      support of his contentions, the owner submitted some bills and cancelled 
      checks all dated in 1987 for work done in 1987 and a copy of a 
      contractor's statement dated February 15, 1987 listing various 
      improvements at a total cost of $15,200.  The February 15, 1987 
      statement had been submitted during the course of the proceeding before 
      the Rent Administrator.

      In answer to the owner's petition, the tenant stated in substance that 
      the Rent Administrator's order was warranted.

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

      An examination of the record in this case discloses that the owner did 
      not submit the required documentary evidence in the proceeding before 
      the Rent Administrator although afforded an opportunity to do so.  It is 
      noted that the contractor listed on the February 15 1987 contractor's 
      statement is the owner herein and pursuant to Policy Statement 90-10, 
      the Rent Administrator was justified in asking for copies of cancelled 
      checks and bills showing specific costs and dates of installation of the 
      improvements.  Further the owner has not given a reasonable explanation 
      for his failure to submit the required evidence below and it cannot be 
      accepted for the first time on appeal since this is not a de novo 
      proceeding.  Moreover it is noted that the bill for removing and 
      replacing the bathroom fixtures for $3,500 and cancelled checks 
      submitted in support thereof on the appeal is inconsistent with the 
      $2,200 bill for the same items submitted below and in the bill submitted 
      below it was stated that the owner had paid cash.  Further there is no 
      requirement that a physical inspection be held in this case.

      Accordingly, the Rent Administrator's order was warranted.

      Because this determination concerns lawful rents only through           
      October 15, 1990, the owner is cautioned to adjust subsequent rents to 
      an amount no greater than that determined by the Rent Administrator's 
      order plus any lawful increases, and to register any adjusted rents with 
      this order and opinion being given as the explanation for the 

      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, 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, denied, and, that the order of the Rent Administrator be, and 
      the same hereby is, affirmed.

          EJ 210385 RO


                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner



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