FG 410145-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
                                
                                
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IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
APPEAL OF                               DOCKET NO.
                                        FG 410145-RO
       95 RIVER COMPANY,                DISTRICT RENT
                                        ADMINISTRATOR'S DOCKET
                                        NO.
                        PETITIONER      CH 410060-RP
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  ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                                
                                
On  July  9,  1991, the above-named owner filed  a  petition  for
administrative review of an order issued on June  6,  1991  by  a
District  Rent Administrator concerning the housing accommodation
known  as Apartment 2-P, 230 Riverside Drive, New York, New York,
wherein the Administrator determined that the owner had collected
excess rents.

The  Commissioner notes that this proceeding was initiated  prior
to  April  1, 1984.  Sections 2526.1(a)(4) and 2521.1(d)  of  the
Rent  Stabilization Code (effective May 1, 1987), which deal with
rent  overcharge and fair market rent proceedings,  provide  that
the  determination of overcharge and fair market rent proceedings
commenced  before April 1, 1984 be based upon  the  law  or  code
provisions  in  effect  on  March  31,  1984.   Therefore,   this
proceeding  is being determined in accordance with  the  code  in
effect on March 31, 1984, and any reference herein to sections of
the  Rent Stabilization Code is to those sections of the code  in
effect on March 31, 1984.

The  Commissioner has reviewed all of the evidence in the  record
and  has carefully considered that portion of the record relevant
to the issues raised in the petition for review.

This  proceeding  was commenced on November  29,  1983  upon  the
filing of a complaint of rent overcharge by the tenants with  the
former  New York City Conciliation and Appeals Board (CAB)  under
Docket   No.  TC-079035-G.   The  tenants  stated  therein   that
comparable  apartments in the subject building had  lower  rents.
They  also  stated that the prior tenant of the subject apartment
was  the  first stabilized tenant and that their request  of  the
owner  to supply them with a copy of and proof of service of  the
DC-2 form was unanswered by the owner.

On  January  26,  1984,  the  CAB received  the  owner's  answer.
Included  with the answer was the prior tenants' lease which  the
owner  alleged constituted a complete rental history to the  base
date.

On  April 1, 1984, responsibility for the administration of  rent
stabilization in New York City was transferred to  the  New  York
State Division of Housing and Community Renewal (DHCR).

On  June  5, 1986, pursuant to a request by the DHCR,  the  owner
submitted to the agency a copy of the DC-2 form and a copy  of  a
certified mail receipt addressed to the first stabilized tenant.

Subsequent correspondence from the tenants continued to raise the
issue  of  the adequacy of the service by certified mail  of  the
DC-2  form  noting that the signer of the certified mail  receipt
was not the tenant.

In an order issued on December 2, 1986 under Docket No. TC 079035-
G  the Administrator determined that the proof of ser-vice of the
DC-2  on  the first stabilized tenant submitted by the owner  was
adequate  and  that  the  tenants  failed  to  prove  other-wise.
Accordingly,  the  Administrator  processed  the   case   as   an
overcharge  instead of a fair market rent appeal.   The  Adminis-
trator found that no overcharge occurred.

On  December 15, 1986, the tenants filed a petition for  adminis-
trative  review  under  Docket No.  AL  510230-RT.   The  tenants
repeated their claim that the name of the signer of the certified
mail  receipt  was not the first stabilized tenant and  that  the
first  stabilized tenant never received the DC-2 notice.   In  an
order issued on August 3, 1988 under Docket No. AL 510230-RT, the
Commissioner ordered that the proceeding be remanded to determine
whether  the tenants were entitled to challenge the initial  sta-
bilized rent in a fair market rent appeal.

In  November  1990 in the review proceeding under Docket  No.  CH
410060-RP,  a  hearing was held to consider whether  the  initial
stabilized  tenant  received  the  DC-2  form  which  would  have
commenced the ninety-day statute of limitations period for filing
a  fair  market  rent  appeal.   At that  hearing  six  witnesses
testified, including the first stabilized tenant.  Based on that


testimony, the administrative law judge concluded that  the  DC-2
form  was  misdelivered and not received by the first  stabilized
tenant.  Section 25B of the Rent Stabilization Code in effect  in
May  1982 states that the ninety-day period to file a fair market
rent appeal begins to run upon receipt of the DC-2 by the tenant.
Accordingly   the  administrative  law  judge  recommended   that
processing  of  this  case be continued as  a  fair  market  rent
appeal.

In  the  order here under review, the Administrator  adopted  the
findings and recommendations of the administrative law judge  and
revoked the order issued on December 2, 1986 under Docket No. TC-
079035-G.  After processing the case as a fair market rent appeal
the  Administrator established the lawful stabilization  rent  at
$477.37 for the lease period of June 1, 1990 through May 31, 1992
and  determined that the excess rents collected by the owner were
$43,139.46 through June 30, 1991 including excess security.

In  its  petition  for administrative review the  owner  requests
reversal of the Administrator's order.  The owner alleges that it
had  submitted sufficient evidence at the hearing to sustain  its
position  that the DC-2 was "properly sent."  Further, the  owner
alleges  that  it  is being penalized for its failure  to  retain
records  for  more  than four years and cites  J.R.D.  Management
Corp.  v.  Eimicke, 539 N.Y.S. 2d 667 (A.D. 2d  Dept.,  1989)  to
support this argument.

After  careful consideration, the Commissioner is of the  opinion
that the petition should be denied.

First,  the owner's allegation that it had proven at the adminis-
trative hearing that the DC-2 was "properly sent" is insufficient
to  reverse the Administrator's order.  As noted by the  adminis-
trative  law  judge, the issue for resolution at the hearing  was
whether  the first stabilized tenant actually received the  DC-2.
In  this  connection, it was determined that the DC-2 notice  was
misdelivered  and  was  never received by  the  first  stabilized
tenants.  Accordingly, the Commissioner finds this allegation  by
the owner presents an insufficient basis for reversal.

Second,  the  owner  alleges that the case of  J.R.D.  Management
Corp.  v. Emicke supports its allegation that the owner need  not
have  supplied  records over four years old.  This allegation  is
totally  without  merit and is dismissible for  several  distinct
reasons.  Among those reasons is that the J.R.D. Management  case
only  applies to rent-overcharge proceedings, and does not  apply
to  fair  market  rent appeals.  JRD was based  on  a  change  in
Section  26-516(g)  of  the Rent Stabilization  Law,  which  only
governs rent overcharge proceedings.  Section 26-513 of the  Rent
Stabilization  Law,  which deals with fair market  rent  appeals,
continues  to re-quire owners to submit records going  back  more
than four years.

Accordingly, the Commissioner finds that the petition for  admin-
istrative review must be denied.


THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied,
and that the Administrator's order be, and the same hereby is,
affirmed, and it is

FURTHER ORDERED, that the owner shall refund to the tenants all
excess rents collected by the owner.  The owner may credit such
refunds against future rents over a period not in excess of six
months.  The tenants, at their option, may continue to abate
their rent until the refund is fully credited, or request the
owner to refund any balance outstanding at the end of such
six-month period.


ISSUED:




ELLIOT SANDER
                                         Deputy Commissioner
    

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