DOCKET NO.:  EC230335RO
                              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
     IN THE MATTER OF THE ADMINISTRATIVE   :   
     APPEAL OF                                 ADMINISTRATIVE REVIEW
                                           :   DOCKET NO. EC230335RO
         DONALD R. FRIED,                      DRO DOCKET NO. BH221841FR
                            PETITIONER     :  
     --------------------------------------X   
                                               

            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


     On March 30, 1990 the above named petitioner-landlord filed an appeal in 
     accordance with the applicable provisions of the City Rent Law and 
     Regulations against an order issued on March 13, 1990 by the Rent 
     Administrator of the Gertz Plaza, Jamaica, New York, Rent Office, concerning 
     housing accommodations known as 371 Atlantic Avenue, Brooklyn, New York, 
     various apts.

     The issue in this proceeding is whether Fuel Cost Adjustments should have 
     been suspended for the calendar year 1987.

     The Rent Administrator's order appealed herein suspended all fuel cost 
     adjustments for the period January 1, 1987 through December 31, 1987.

     This order was based upon a finding that the owner of the subject building 
     had previously obtained allowable fuel cost adjustments and failed to timely 
     serve and file the required report of fuel cost decrease by reason of a 
     decrease in the price of #2 oil during the calendar year 1986.

     On appeal, the landlord states, in substance, that the "Last Fuel Cost 
     adjustment granted to landlord was a 1980 adjustment granted in 1983 and the 
     "tenants rents have not increased since 1983."

     After a careful consideration of the entire evidence of record the 
     Commissioner is of the opinion that the administrative appeal should be 
     denied.

     9 NYCRR 2202.13 provides that where a landlord has obtained fuel cost 
     adjustments and then there is a finding of fuel price decrease, within 60 
     days of the promulgation of the finding on fuel prices, the landlord must 
     serve and file a report of fuel price decrease.

     In early 1987, a finding was promulgated that the price of #2 fuel oil had 
     declined during 1986.  The subject landlord was required to file and serve 
     fuel cost decrease reports on or before July 31, 1987.










          DOCKET NO.:  EC230335RO

     In this matter it is undisputed that a "Landlord's Report, Certification and 
     Notice of Fuel Cost Adjustment Eligibility - 1987" was not received by the 
     Rent Office on or before July 31, 1987.  The landlord's allegation that no 
     rent increase had been passed along to the tenant(s) in the immediately 
     previous years is irrelevant.  Section 2202.13e merely requires that the 
     owner had obtained one or more fuel increases in the past.  It is not 
     necessary that one must have been obtained in the immediate prior years.

     However, it is implied in the Administrator's order that if no Fuel Cost 
     Adjustments were collected in 1987 then no refund was required.  Similarly, 
     if only the 1980 FCA was collected in 1987, only it would have to be 
     refunded.  Furthermore, the Commissioner notes that the owner alleges on 
     appeal that he only acquired the building in 1988.  If the prior owner 
     collected Fuel Cost Adjustments in 1987, the petitioner would still be 
     obligated to refund the FCA's collected.  Nevertheless, this order is without 
     prejudice to the petitioner's right to proceed against the prior owner in a 
     court of competent jurisdiction.

     The Commissioner is of the opinion the Rent Administrator correctly suspended 
     Fuel Cost Adjustments for the calendar year 1987.

     THEREFORE, in accordance with the applicable provisions of the Rent and 
     Eviction Regulations for New York City, it is

     ORDERED, that this administrative appeal be, and the same hereby is, denied, 
     and that the order of the Rent Administrator be, and the same hereby is, 
     affirmed.

     ISSUED:



                                                                            
                                                    JOSEPH A. D'AGOSTA
                                                    Deputy Commissioner
      
    

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