EK 410179-RT
                                
                        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
                                
                                
                                
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IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
APPEAL OF                               DOCKET NO.:
                                        EK 410179-RT
           JEFFREY ROY,                 DISTRICT RENT
                                        ADMINISTRATOR'S DOCKET
                                        NO.:
                        PETITIONER      CB 410256-R
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          ORDER AND OPINION REMANDING PROCEEDING TO THE
                       RENT ADMINISTRATOR
                                
                                
On  November 9, 1990, the above-named tenant filed a Petition for
Administrative Review against an order issued on October 30, 1990
by  a  Rent Administrator concerning housing accommodations known
as  Apartment  802 at 300 West 49th Street, New York,  New  York,
wherein the Administrator determined that the tenant had not been
overcharged.

The  issue  in this appeal is whether the District Rent  Adminis-
trator's order was warranted.

The applicable sections of the law are Section 26-516 of the Rent
Stabilization  Law  and  Section  2522.6  of  the  current   Rent
Stabilization Code.

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 by the filing of a rent
overcharge complaint by the tenant on February 8, 1988.

The tenant took occupancy pursuant to a one-year lease commencing
on  August 1, 1986, and expiring July 31, 1987, at a monthly rent
of  $1,082.06.  The complaint alleged that the amount of a recent
MCI increase was incorrectly based upon her apartment having four
rooms,  when  in  fact,  the apartment is  smaller.   The  tenant
included a hand-drafted floor plan of the apartment on which only
two rooms were indicated.

The  owner  was  served  with a copy of  the  complaint  and  was
directed  to submit a complete rent history from the  base  date,
including  copies  of all leases.  The owner complied  with  this
request.  The answer made no reference to the number of rooms  in
the apartment.

In Order No. CB 410256-R issued on October 30, 1990, the District
Rent  Administrator determined that the initial legal  registered
rent  of  $900.00  had been lawfully increased  to  $1,137.98  in
accordance with the orders of the Rent Guidelines Board, and that
there  were no overcharges of the tenant's rent.  The order noted
that the April 1, 1984 registration showed that the apartment has
four rooms and since this was not challenged, the count remains.

In  her petition, dated November 9, 1990, the tenant restates her
challenge  to  the room count for her apartment, and  requests  a
recount.

The Commissioner is of the opinion that this proceeding should be
remanded  to the administrator for a determination on the  actual
size and room count of the subject apartment.

In  order  to determine the number of rooms in an apartment,  the
Division has promulgated the following definition of a room:

          1.A  windowless  kitchen containing  at  least  59
          square feet.
          
          2.An enclosed area with window containing at least
          60 square feet.
          
          3.An  enclosed  area without window containing  at
          least 80 square feet.
          
          4.Does not include bathroom, walk-in closet, etc.
          
The  tenant's complaint alleges that the calculation  of  several
MCI  rent increases is incorrect as based upon an incorrect  room
count  for the apartment. Since the entire basis for the tenant's
overcharge  claim is that the incorrect room count was  resulting
in  excessive  MCI  increases, the Administrator's  determination
that  there  were no overcharges without establishing the  actual
room  count of the apartment was improper.  Furthermore, a review
of  the room count is not time-barred by the tenant's failure  to
timely  challenge it in the initial registration; it  is  a  fact
that may be necessary to the determination of the legal regulated
rent   and,  in  accordance  with  Section  2522.6  of  the  Rent
Stabilization  Code, the DHCR may review it ".  .  .upon  written
request of either party, or on its own initiative. . ."


However,  a  review of the Division's records fails to  establish
with  certainty  the  number of rooms in  the  subject-apartment.
Although the subject-apartment and another apartment in the  same
line,  #702,  are  both  listed as having  four  rooms  on  their
registration statements, there is another apartment in that line,
#602, that is registered for only three rooms. Therefore, as  the
record is insufficient to make a final determination on the  room
count, the proceeding is hereby remanded to the Administrator for
that  purpose.   Subsequently, the Administrator shall  determine
the accuracy of the MCI increases in accordance with his findings
and reissue the order.


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

ORDERED,  that the tenant's petition be, and the same  hereby  is
granted  in part and that the proceeding be, and the same  hereby
is,  remanded to the Rent Administrator in accordance  with  this
order and opinion.


ISSUED:




ELLIOT SANDER
                                         Deputy Commissioner
    

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