FD 410105-RO;  FE 410023-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 NOS.:
                                        FD 410105-RO
   BRADFORD SWETT AND ASSOCIATES,       FE 410023-RT
                and
          RANDY D. SPENCE,              DISTRICT ADMINISTRATOR'S
                                        DOCKET NO.:
                        PETITIONERS     L 001847-R
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 ORDER AND OPINION GRANTING PETITIONS FOR ADMINISTRATIVE REVIEW
 IN PART AND REMANDING THE PROCEEDING TO THE RENT ADMINISTRATOR
                                
                                
On  April  9,  1991,  the  above named petitioner-owner  filed  a
Petition  for  Administrative Review against an order  issued  on
March  5,  1991,  by  a  Rent  Administrator  concerning  housing
accommodations known as Apartment 11 at 1873 Second  Avenue,  New
York,   New   York,  wherein  the  District  Rent   Administrator
determined that the tenant had been overcharged in the amount  of
$16,649.72, including treble damages and excess security.

On  May 3, 1991 the above-named petitioner tenant refiled a Peti-
tion  for  Administrative Review against the same  Administrative
order.

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 on May 5, 1985.

The   tenants  took  occupancy  pursuant  to  a  one-year   lease
commencing June 1, 1982, and expiring May 31, 1983, at a  monthly
rent  of  $385.00.  The complaint also stated that the  rent  was
higher  than other accommodations in the neighborhood and in  the
subject-building.  There was also a typewritten sheet attached to
the complaint listing numerous reductions in services.

The  owner  was served with a copy of the complaint and  was  di-
rected to submit a complete lease history from the base date,  to
establish the lawfulness of the rent being charged.

In an answer dated July 8, 1985, the owner states that there were
no  other  similar apartments rented for $385.00,  and  that  the
tenant  had  agreed  to  lease renewals in  accordance  with  the
guidelines.   The answer also addressed several  of  the  service
items in the complaint.  No lease history was submitted.

The  tenant submitted a supplement to the complaint on August  5,
1985,  wherein  he explained that he had not been served  with  a
copy  of  the  Registration Form, and that his  "overcharge  com-
plaint"  was  delayed because he was only able to find  out  what
procedures to take "through the grapevine."

The  owner  was  subsequently mailed  a  request  for  additional
information  and  a final notice of pending default.   The  owner
requested  a  30-day extension in which to provide the  requested
information  on January 30, 1991.  In a letter dated February  1,
1991,  the Administrator granted an extension until February  22,
1991.

In  an  order  issued  on March 5, 1991, the  Rent  Administrator
determined that the tenant had been overcharged in the amount  of
$16,649.72  through  May 31, 1987, including treble  damages  for
overcharges  collected since April 1, 1984 and  excess  security.
The  lawful rent upon the complainant's occupancy on June 1, 1982
was determined as $308.00 per month in accordance with procedures
used  in the case of the owner's default.  It was also determined
that  the  owner failed to register the apartment as of April  1,
1984.   The  lawful rent was thus fixed for the duration  of  the
complainant's tenancy.

In its petition, dated April 9, 1991, the owner contends that the
order is invalid because the tenant was the first rent stabilized
tenant  subsequent to the decontrol of the apartment in February,
1982, which information was in the records of the Division. Since
the complainant provided all necessary information as of the date
of his occupancy as the first stabilized tenant, the DHCR already
had  a  complete  lease history, and the application  of  default
procedures was thus improper.

The  tenant's  petition  stated that  the  period  for  computing
overcharges should have been extended until he left the  premises
on October 31, 1988.

The  Commissioner  is  of the opinion that the  owner's  petition
should  be  granted  in  part, the tenant's  petition  should  be
granted  in  part, and that the proceeding should be remanded  to
the Administrator for a redetermination.

In  reviewing the instant case, the Commissioner finds  that  the
Administrator erred in defaulting the owner for failing to submit
rental records for the subject apartment since there was no prior
rental  history  for  the subject apartment  under  stabilization
which could be submitted.  The rental documentation submitted  by
the  owner, as well as Division records, indicate that  the  base
date  for  the  subject apartment was May 20, 1982 and  that  the
complaining tenant was the first stabilized tenant to occupy  the
subject apartment.

Pursuant to Section YY51-6.0.2 of the Rent Stabilization Law  and
Section  25  of  the Rent Stabilization Code, a first  stabilized
tenant taking occupancy on or after July 1, 1974 has the right to
challenge  the initial legal regulated rent by means  of  a  fair
market rent appeal.  The proceeding is therefore remanded to  the
Rent  Administrator for processing as a fair market rent  appeal,
which shall include consideration of comparability data submitted
by  the  owner,  if  he  so  elects, in accordance  with  Section
2522.3(e) of the Rent Stabilization Code.

Finally, the Commissioner grants the tenant's petition to  extend
the  period  of  review of the proceeding  to  the  date  of  the
tenant's verified departure from the subject apartment.


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

ORDERED, that the petition be, and the same hereby is, granted to
the  extent  of  remanding this proceeding to the  District  Rent
Administrator  for  further processing in  accordance  with  this
order and opinion.  The automatic stay of so much of the District
Rent  Administrator's  order  as  directed  a  refund  is  hereby
continued until a new order is issued upon remand.  However,  the
Administrator's determination as to the rent is  not  stayed  and
shall  remain in effect, except for any adjustments  pursuant  to
lease  renewals, until the Administrator issues a new Order  upon
remand.


ISSUED:




ELLIOT SANDER
                                         Deputy Commissioner
    

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