FE 210457 RO

                                  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.: FE 210457 RO

             VILLE DE PORT INC. ADAR MGMT.,      DRO DOCKET NO.: CC 210097 RP

                                                    TENANT:  SUSAN NORDEN     
                                   PETITIONER    
          ------------------------------------X                             

            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW


          On May 17, 1991, the above-named petitioner-owner filed a Petition 
          for Administrative Review against an order issued on April 26, 
          1991, by the Rent Administrator, 92-31 Union Hall Street, Jamaica, 
          New York, concerning the housing accommodations known as 100 Caton 
          Avenue Brooklyn, New York, Apartment No. 7N wherein the Rent 
          Administrator determined that the owner had overcharged the tenant 
          and affirmed prior order No. CDR 07,890 which was issued September 
          17, 1985.

          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 
          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 in August 
          1977 of a rent overcharge complaint by the tenant who occupied the 
          subject apartment from November 1975 through July 30, 1980.

          On July 6, 1978 the Conciliation and Appeals Board, (CAB), the 
          agency formerly charged with enforcing the Rent Stabilization Law 
          and Code, issued Opinion 8222 which stated that the owner had 
          failed to submit rental history from May 31, 1968 and advised the 
          owner to submit such documentation within 30 days in order to 
          establish the lawful stabilization rent.

          The tenant filed a statement of non-compliance on August 5, 1978 
          and subsequently the tenant submitted cancelled checks covering the 
          period January 1975 - September 1975 from the prior tenant 
          (Abrashein) along with a letter from the prior tenants stating that 
          their original lease commenced in December 1959 and that their last 
          renewal lease commenced December 1, 1973 and expired November 30, 
          1975 at a rental of $299.43 plus $28.00 and tax for a garage space 
          which the prior tenant had discontinued  and ceased to pay for in 
          1974.  The cancelled checks submitted show that the monthly rent 







          FE 210457 RO

          paid was $299.43.

          The Rent Administrator issued order CDR 07,890 on September 17, 
          1985, in which, due to the owner's failure to submit a complete 
          rental history from May 31, 1968, it was determined that the 
          tenant had been overcharged and the lawful stabilization rent was 
          frozen at $299.43 from November 1, 1975 through July 31, 1980 (the 
          date that the complainants vacated the subject apartment).

          The owner filed a petition for Administrative Review under Docket 
          ARL 05405 K and an order remanding the proceeding to the Rent 
          Administrator without rendering a decision on the merits was issued 
          on February 22, 1988.

          On March 25, 1991, the Rent Administrator reopened the proceeding 
          under Docket CC 210097 RP and on April 26, 1991 issued the order 
          appealed herein affirming its earlier order issued on September 17, 
          1985.

          In this petition, the owner contends in substance that it did not 
          default as it submitted all the rent records it had; that it should 
          not be required to submit rent records prior to the date it 
          acquired the building in May 1976; that all subsequent renewal 
          increases were within Rent Guideline Board Order limits and that 
          the tenants had vacated over 10 years ago.

          In answer to the owner's petition, the tenant stated in substance 
          that the order was warranted because the owner has continually 
          failed to submit rental records as required and the previous 
          petition and order had affirmed the tenant's rights to the 
          overcharge due to the owner's invalid excuses for failing to submit 
          the records.  The only prior rental records were obtained through 
          the tenant efforts in contacting the prior tenant.

          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) to date and to produce such 
          records to the DHCR upon demand.

          Section 26-516 of 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 produce rent 
          records for more than 4 years prior to the most recent 
          registration, and concomitantly, established a 4 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, 


          FE 210457 RO

          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 
          right 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 4 years prior to April 1, 1984 
          of their 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. Mgt. v. 
          Eimicke, 148 A.D.2d 610, 539 N.Y.S.2d 667 (App. Div. 2d Dep't 
          1989), motion for leave to reargue or for leave to appeal to the 
          Court of Appeals denied (App. Div. 2d Dep't, 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 the filing of the 
          complaint must be applied and that the DHCR could not require an 
          owner to produce more than 4 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 Dep't 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 orders 
          finding a rent overcharge must be revoked.

          The Commissioner notes for the record that an examination of the 
          tenant's renewal leases prior to April 1980 discloses that the 
          rents charged therein did not exceed the Rent Guideline Board 
          orders in effect at the time the renewal leases were executed.




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

          ORDERED, that this petition for administrative review be, and the 
          same hereby is, granted, that the order of the Rent Administrator 







          FE 210457 RO

          be, and the same hereby is, revoked, and it is found that no rent 
          overcharge occurred.





          ISSUED



                                                                      
                                          JOSEPH A. D'AGOSTA
                                          Acting Deputy Commissioner




                     



    

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