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 :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO. FA 410268 RO
                                              :  DRO DOCKET NO. 41408
               54 BARROW STREET                  TENANT: BRAD BEALMEAR   

                                PETITIONER    : 
          ------------------------------------X                             
             ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


               On January 14, 1991, the above-named petitioner-owner timely 
          refiled a Petition for Administrative Review against an order issued 
          on April 26, 1989, and subsequently amended by the Rent 
          Administrator, 92-31 Union Hall Street, Jamaica, New York, 
          concerning the housing accommodations known as 54 Barrow Street, New 
          York, New York, Apartment No. 5D, wherein the Rent 
          Administrator determined the fair market rent pursuant to the 
          special fair market rent guideline promulgated by the New York 
          City Rent Guidelines Board for use in determining fair market rent 
          appeals.

          The Administrative Appeal is being determined pursuant to the 
          provisions of Section 2521.1 of the Rent Stabilization Code.

          The issue herein is whether the Rent Administrator's order 
          was warranted.

          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 
          fair market rent appeal by the tenant in December 1984.  The 
          tenant took occupancy pursuant to a lease commencing August 1, 
          1984 at a monthly rent of $1,100.00.

          The owner was served with a copy of the tenant's fair market 
          rent appeal, afforded an opportunity to submit rental data for 
          comparable apartments, and directed to submit rent records for the 
          subject apartment from June 30, 1974 or the date the subject 
          apartment first became subject to rent stabilization, whichever is 
          later.

          In a response dated March 9, 1987, the owner "54 Barrow 
          Street Associates, c/o A. J. Clarke Mgmt." stated in substance 
          that the tenant herein is the first rent stabilized tenant, that 
          the current owner is "54 Barrow Street Associates"; that said 
          current owner first purchased the subject premises on October 31, 










          FA 410268 RO

          1984 and did not receive rent records prior to its purchase of the 
          subject premises.  In support of such contention, the owner 
          submitted a copy of a deed dated October 31, 1984 showing that "54 
          Barrow Street Associates, c/o A. J. Clarke" purchased the subject 
          premises from "54 Barrow Inc.".  The owner did not submit any 
          comparability data.

          The tenant's lease renewal effective August 1, 1986 listed A. 
          J. Clarke Management Corp. as the owner's agent, and the tenant's 
          subsequent renewal leases effective August 1, 1987, August 1, 
          1988, and August 1, 1989 listed Jonis Realty Mgmt. Corp., 98 
          Cutter Mill Road, Great Neck, New York, as the owner's agent.  The 
          April 1, 1984 registration of the subject premises with the DHCR 
          listed the owner as "54 Barrow Street Associates, c/ Jonis Realty 
          Mgmt. Corp., 98 Cutter Mill Road, Great Neck, New York.

          In the amended order under appeal herein, the Rent 
          Administrator adjusted the initial legal regulated rent by 
          establishing a fair market rent of $308.41 effective August 1, 
          1984, found that the tenant had paid excess rent including excess 
          security totalling $55,546.50 through December 31, 1989, and 
          directed the owner "54 Barrow Street Realty Associates, c/o Jonis 
          Realty Mgmt. Co." to refund the excess rent to the tenant.  Since 
          the owner did not submit comparability data, the fair market rent 
          was determined solely pursuant to Special Guidelines Order Number 
          15 - the 1984 Maximum Base Rent of $235.31 adjusted by an 
          additional 20% plus a fuel cost adjustment to get a fair market 
          rent of $308.41.

          On January 30, 1990, a petition was filed by "54 Barrow 
          Street, c/o Jonis Realty Mgmt. Corp.".  Such petition was signed 
          by Elizabeth S. Giannone as managing agent.  In addition, Ms. 
          Giannone submitted a deed for the subject premises dated July 28, 
          1983 wherein "54 Barrow Inc." was listed as  purchasing the 
          subject premises from "City Realty Co.".  On December 12, 1990, an 
          order was issued rejecting this petition since the owner failed to 
          set forth objections to the order being appealed.

          In the refiled petition considered herein, the owner "54 
          Barrow Street" listing its agent as Elizabeth S. Giannone and 
          appearing by its attorney alleges in substance that the current 
          owner is "54 Barrow Street Realty Associates", that the current 
          owner first took ownership on December 24, 1985 and should not be 
          liable for the refund of any rent prior to December 24, 1985; and 
          that pursuant to Section 26-516 (g) of the Rent Stabilization Law, 
          the owner should not have been asked to submit rent records and 
          other documentation more that four years prior to the Rent 
          Administrator's request for such evidence.

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





          It is the DHCR's policy in fair market rent appeal cases that 
          the obligation of a new owner to refund excess rent is limited to 
          such excess rent collected by it and may not be extended to excess 


          FA 410268 RO
          rent collected by any prior owner in the absence of any collusion 
          or relationship between the new owner and any prior owner.

          In the instant case, an examination of the records clearly 
          discloses the existence of a relationship between the current 
          owner and prior owner.  It is noted that the current owner's 
          managing agent Elizabeth S. Giannone of Jonis Realty Mgmt. Corp., 
          submitted a deed showing the purchase of the subject premises in 
          1983 by a "54 Barrow Inc." with which she evidently had some 
          connection.  Further the subject premises was registered in 1984 
          with the owner listed as "54 Barrow Street Associates, c/o Jonis 
          Realty Mgmt. Corp."  In addition after the current owner states it 
          first took title to the subject premises on December 24, 1985, A. 
          J. Clarke continued to act as managing agent for a time as 
          witnessed by the tenant's August 1, 1986 renewal lease which 
          listed A. J. Clarke as the managing agent.  It is noted that in 
          its answer to the tenant's fair market rent appeal, A. J. Clarke 
          stated that it first acquired ownership of the subject premises on 
          October 31, 1984.  Based on the foregoing interconnected owner 
          relationships, the Commissioner is of the opinion that 
          apportionment of the excess rent is inappropriate and that the 
          current owner herein remains liable for the refund of all excess 
          rent to the tenant.

          With regard to the owner's contention that it should not have 
          to submit rent records or documentary evidence more that four 
          years old pursuant to Section 26-516, it is noted that the Omnibus 
          HOusing Act of 1983 did not change the laws and procedure for 
          determining a challenge to the Fair Market Rent and that the base 
          date for computing a challenge to the fair market rent remains 
          June 30, 1974, or the date that the apartment first became 
          subject to rent stabilization, if later.  Moreover although the 
          owner herein was asked to submit rent records more than four years 
          old, the owner's failure to submit such records and its failure to 
          submit comparability data merely resulted in the fair market rent 
          being determined solely on the basis of the special fair market 
          rent guideline and not on comparability data as well.  
          Accordingly, the Rent Administrator's order was warranted.

















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

          ORDERED, that this petition for administrative review be, and 







          FA 410268 RO
          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
                                          Acting Deputy Commissioner




                     































    

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