FB 210339 RO

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

      APPEAL OF                              DOCKET NO.: FB 210339 RO

           Bist Management,                  DRO DOCKET NO.: TC 58503 G

                                             TENANT: Pugdin                   


      On February 19, 1991, the above-named petitioner filed a Petition for 
      Administrative Review against an order issued on January 15, 1991, by 
      the Rent Administrator concerning the housing accommodations known as 
      3060 Ocean Avenue, Brooklyn, New York, Apartment No. 4-O, 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 with the New York City Conciliation 
      and Appeals Board, one of the predecessor agencies to the Division of 
      Housing and Community Renewal.  The tenant took occupancy pursuant to a 
      lease commencing November 15, 1979 and expiring November 14, 1980, at a 
      monthly rental of $350.00.

      In answer to the tenant's complaint, the owner stated in substance that 
      it purchased the property at a foreclosure sale, and was not provided 
      any leases prior to the complaining tenant's first lease, and submitted 
      a rental history from November 15, 1979.

      On March 22, 1985, under Order No. CDR 2,686, the Rent Administrator 
      determined that, due to the owner's failure to submit a complete rental 
      history, the tenant had been overcharged in the amount of $11,233.67, 
      and directed the owner to refund such overcharge to the tenant.  The 
      Administrator further directed the owner to compute subsequent renewals 
      and/or vacancy leases above the base rent of $165.67 per month.

      The order, however, indicated the name and address of the premises 
      previous owner, and was served upon same.

          FB 210339 RO

      On January 15, 1991 the order was amended to correct the name and 
      address of the owner.  On February 19, 1991 the owner timely filed its 
      petition for administrative review, contending, among other things, that 
      it was under no obligation to produce any records relating to rentals of 
      the premises for more than four years prior to the most recent 
      registration of the premises, pursuant to the holding in J.R.D. v. 
      Eimicke, 148 A.D.2d 718, 539 N.Y.S.2d 669 (1989).

      In answer to the petition, the tenant contends, among other things, that 
      the March 22, 1985 order is based upon a correct application of the 
      appropriate law.

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

      Section 42A of the former Rent Stabilization Code requires that an owner 
      retain complete records for each stabilized apartment in effect from 
      June 30, 1974 (or the date the apartment became subject to rent 
      stabilization, if later) and to produce such records to the DHCR upon 

      Section 26-516 of the Rent Stabilization Law, effective April 1, 1984, 
      limited an owner's obligation to provide rent records by providing that 
      an owner may not be required to maintain or to produce rent records for 
      more than four (4) years prior to the most recent registration, and 
      concomitantly, established a four year limitation on the calculation of 
      rent overcharges.

      It has been the DHCR's policy that overcharge complaints filed prior to 
      April 1, 1984, are to be processed pursuant to the Law or Code in effect 
      on March 31, 1984. (see Section 2526.1 (a) (4) of the current Rent 
      Stabilization Code.)  The DHCR has therefore applied Section 42A of the 
      former Code to overcharge complaints filed prior to April 1, 1984, 
      requiring complete rent records in these cases.  In following this 
      policy, the DHCR has sought to be consistent with the legislative intent 
      of the Omnibus Housing Act (Chapter 403, Laws of 1983), as implemented 
      by the New York City Conciliation and Appeals Board (CAB) the 
      predecessor agency to the DHCR, to determine rent overcharge complaints 
      filed with the CAB prior to April 1, 1984, by applying the law in effect 
      at the time such complaints were filed so as not to deprive such tenants 
      of their rights to have the lawful stabilized rent determined from the 
      June 30, 1974 base date and so as not to deprive tenants whose 
      overcharge claims accrued more than four years prior to April 1, 1984 of 
      the right to recover such overcharges.  In such cases, if the owner 
      failed to produce the required rent records, the lawful stabilized rent 
      would be determined pursuant to the default procedure approved by the 
      Court of Appeals in 61 Jane Street Associates v. CAB, 65 N.Y.2d 898, 493 
      N.Y. S. 2d 455 (1985).

      However, it has recently been held in the case of J.R.D. Mgmt. v. 
      Eimicke, 148 A.D.2d 610. 539 N.Y.S. 2d 667 (App. Div. 2d Dept., 1989). 
      motion for leave to reargue or for leave to appeal to the Court of 
      Appeals denied ( App. Div. 2d Dept., N.Y.L.J., June 28, 1989. p.25, 
      col.1), motion for leave to appeal to the Court of Appeals denied (Court 
      of Appeals, N.Y.L.J., Nov. 24, 1989, p.24, col.4)., motion for leave to 
      reargue denied (Court of Appeals, N.Y.L.J., Feb. 15, 1990, p.25, col.1), 
      that the Law in effect at the time of the determination of the 
      administrative complaint rather than the Law in effect at the time of 

          FB 210339 RO

      the filing of the complaint must be applied and that the DHCR could not 
      require an owner to produce more than four years of rent records.

      Since the issuance of the decision in JRD, the Appellate Division, First 
      Department, in the case of Lavanant v. DHCR, 148 A.D.2d 185, 544 
      N.Y.S.2d 331 (App. Div. 1st Dept. 1989), has issued a decision in direct 
      conflict with the holding in JRD.  The Lavanant court expressly rejected 
      the JRD ruling finding that the DHCR may properly require an owner to 
      submit complete rent records, rather than records for just four years, 
      and that such requirement is both rational and supported by the Law and 
      legislative history of the Omnibus Housing Act.

      Since in the instant case the subject dwelling unit is located in the 
      Second Department, the DHCR is constrained to follow the JRD decision in 
      determining the tenant's overcharge complaint, limiting the requirement 
      for rent records to April 1, 1980.  An examination of the rent records 
      from April 1, 1980 discloses that no rent overcharge occurred.  
      Therefore, the Rent Administrator's order finding a rent overcharge must 
      be revoked.

      THEREFORE, in accordance with the Appellate Division ruling in JRD, it 

      ORDERED, that this petition for administrative review be, and the same 
      hereby is, granted, that the order of the Rent Administrator be, and the 
      same hereby is, revoked, and it is found that no rent overcharge 


                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner


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