FB410025RO
           
                             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. FB410025RO

                                          :  DISTRICT RENT OFFICE
           Joshua Tauber,                    DOCKET NO. AA410225R
                                            
                                             TENANT: Nancy Larsen             
              
                            PETITIONER    : 
      ------------------------------------X                             

          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                                     IN PART

      On February 5, 1991, the above-named owner filed a petition for 
      administrative review of an order issued on January 23, 1991 by a 
      District Rent Administrator concerning the housing accommodations known 
      as 44 West 85th Street, New York, New York, Apartment No. 4B, wherein 
      the Administrator determined that the owner had overcharged the tenant.

      The Administrator has reviewed all of the evidence in the record and has 
      carefully considered that portion of the record relevant to the issues 
      raised by the administrative appeal.

      This proceeding was commenced by the filing of an overcharge complaint. 
      The tenant stated, among other things, that she was not presented with 
      a rental history.  The tenant also noted that the prior tenant was 
      overcharged as well.

      In his answer the owner alleged, among other things, that no overcharge 
      occurred.  The owner alleged he was entitled to a new first 
      stabilization rent based on extensive work done in the subject 
      apartment.

      Subsequently, the Administrator notified the owner that the record 
      failed to indicate that the subject apartment was properly registered.  
      The Administrator requested that the owner produce proof of service of 
      the 1984 registration and a lease history from April 1, 1980.

      The owner submitted a Rent Stabilization Association affidavit attesting 
      to service of the initial registration on the tenant in residence on 
      April 1, 1984, a copy of the RSA mailing addressee list including the 
      April 1, 1984 tenant, and an amended 1984 registration form addressed to 
      a different tenant.  The record also contained several leases for the 
      subject apartment including the lease in effect on April 1, 1980.
      In the order here under review, the Administrator found that the owner 
      had failed to adequately prove service of the Initial Registration Form 
      on the tenant then in occupancy.  The Administrator further found that 
      the owner had failed to submit the lease in effect on April 1, 1980.  
      Using the court-approved default method, the Administrator determined 
      that the complainant-tenant's lawful stabilized rent was $850.00 per 







          FB410025RO

      month and that the total overcharges were $10,238.25 including treble 
      damages and excess security.

      In his petition for administrative review, the owner asserts that he 
      had, in fact, registered this building in 1984, that he had submitted 
      the initial registration form and proof of service, and that he had 
      supplied DHCR with all the information the agency requested.  Further, 
      he alleges that in a DHCR case involving the prior tenant of the subject 
      apartment, the overcharge complaint was found to be "without merit."

      In her answer to the petition for administrative review, the tenant 
      asserts that the overcharges should have been larger based on the same 
      overcharge case involving the prior tenant.

      The Commissioner is of the opinion that this petition for administrative 
      review should be granted in part.

      The owner incorrectly alleges that the overcharge complaint filed by the 
      prior tenant of the subject apartment under Docket No. 005988 was found 
      to be "without merit."  In fact, that order found a lower lawful 
      stabilization rent than the Administrator's order under appeal herein 
      and was in full force and effect at the time the instant case was being 
      processed.  Correct processing of this case based on the earlier 
      Administrator's order would result in detriment to the owner.  As such, 
      and in the absence of a timely petition for administrative review by the 
      tenant, the Commissioner finds it appropriate to deny this portion of 
      the owner's petition for administrative review.

      Regarding the owner's allegation that the prior tenant was served with 
      the initial registration, this allegation is corroborated by DHCR 
      records.  In the prior DHCR case under Docket No. 005988, the prior 
      tenant acknowledged receipt of the initial registration and submitted a 
      copy of the initial registration addressed to him which he had received 
      from the owner.  Accordingly, the Administrator's finding that the 
      initial registration was not served on the prior tenant was incorrect 
      and must be revoked.

      The Commissioner will not grant the tenant's request to increase the 
      amount of the overcharges.  As indicated above, while the tenant's 
      allegation may be meritorious, her failure to file a timely petition for 
      administrative review precludes the Commissioner from increasing the 
      amount of the overcharges.  

      Because this determination concerns lawful rents only through July 31, 
      1987, the owner is cautioned to adjust subsequent rents to an amount no 
      greater than that determined by this order plus any lawful increases.




      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.

      A copy of this order and opinion is being sent to the current occupant 
      of the subject apartment.

      THEREFORE, in accordance with the provisions of the Rent Stabilization 


          FB410025RO

      Law and Code, it is

      ORDERED, that this petition be, and the same hereby is, granted in part, 
      and  the District Rent Administrator's order be, and the same hereby is, 
      modified in accordance with this order and opinion.  The amount of the 
      rent overcharge through July 31, 1987 is $10,238.25.


      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner





    

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