FC 410292 RO

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

      ------------------------------------X  SJR No. 6357
      APPEAL OF                              DOCKET NO. FC 410292 RO

                                          :  DISTRICT RENT OFFICE
                                             DOCKET NO. CC 410148 RP/
           Shaw Realty Mgmt. Co.,               
                                             TENANT: Jamie Silverstein        
                            PETITIONER    : 


      On March 26, 1991, the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on February 22, 1991, by 
      the Rent Administrator, Gertz Plaza, New York, concerning the housing 
      accommodations known as 115 West 104th Street, New York, New York, 
      Apartment No. 42, wherein the Rent Administrator determined that the 
      owner had overcharged the tenant.

      Subsequent thereto, the tenant filed a mandamus proceeding pursuant to 
      Article 78 of the CPLR.  By stipulation dated May 29, 1992, the Article 
      78 proceeding was withdrawn or condition that the DHCR issue an order 
      within 110 days of May 29, 1992.

      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.  The owner was served with a copy of 
      the tenant's complaint and submitted a complete rental history as 
      required.  In answer the owner stated that the subject apartment was 
      altered from a three bedroom apartment to a two bedroom apartment and 
      that substantial improvements were made to the subject apartment.  In 
      Order Number 11,139, issued on December 6, 1985, the Administrator 
      determined that the owner was entitled to a free market rent based on 
      substantial alteration of the apartment so as to create a new dwelling 
      unit and determined that the tenant was not overcharged.  On March 17, 
      1988 an Order of Remand was issued by the Commissioner and on February 
      22, 1991 the Administrator in Order Number CC-410148 RP determined that 
      the owner was not entitled to a free market rent because the outer 
      dimensions of the apartment had not been changed.  The Administrator 

      FC 410292 RO

      established the lawful stabilized rent as $240.00 per month effective 
      December 1, 1980, determined that the tenant had been overcharged and 
      directed a refund to the tenant of $52,763.39 including interest on 
      overcharges collected on and after April 1, 1984.

      In this petition, the owner contends in substance that the first Order 
      by the Administrator finding a free market rent was correct; that the 
      Agency had denied it an opportunity to review the file; and that the 
      Agency should consider new architectural plans submitted with the 
      petition showing that the exterior walls of the apartment had changed.

      In answer to the owner's petition, the tenant states in substance that
      the owner should not be able to submit any new bills, cancelled checks 
      or architectural plans that were not submitted before the Administrator 
      and just for the first time submitted in this PAR proceeding.  In 
      addition the tenant asserts that the new architectural plan dated 
      February 14, 1991 differ from the original plans submitted on December 
      13, 1983 and therefore were fabricated for the purpose of this PAR.

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

      An examination of the record in this case discloses that the owner has 
      been afforded an opportunity to review the file and has done so.  The 
      owner requested a 60 day extension to submit an answer but failed to 
      submit an answer within that time.  The owner requested a second 45 day 
      extension and was denied this request in accordance with Advisory 
      Opinion 92-1 as the request was not "as of right" and was therefore 
      discretionary with the Agency.  The "new" architectural plans dated 
      December 13, 1983 cannot be considered for the first time on the PAR 
      level.  However, even if the new plans would be considered, it is noted 
      that the new plans differ from the ones submitted to the Administrator 
      and that the plans only show a de minimus change to the dimensions of a 
      closet that would not qualify the apartment for a free market rent.

      It is noted that a submission by fax was received on September 16, 1992 
      from the owner's attorney.  However, said submission was untimely filed 
      in accordance with Advisory Opinion 92-1.  

      Accordingly, the Rent Administrator's order was warranted.

      Because this determination concerns lawful rents only through August 15, 
      1988, 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 adjustment.  A copy of 
      this order and opinion is being sent to the current occupant of the 
      subject apartment.

      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.

      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.

      FC 410292 RO


                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner


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