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 NOS.: FB 410460-RT
                                         :               FE 410272-RO
                                            DRO DOCKET NO.: DJ 410049R/P
       KYLE D. YORK, TENANT and                            (L3117857-R)
      FRED MENGONI, OWNER, PETITIONERS   : 
     ------------------------------------X  OWNER:FRED MENGONI        

     ORDER AND OPINION GRANTING IN PART, TENANT'S PETITION FOR ADMINISTRATIVE
                       REVIEW, AND DENYING OWNER'S PETITION

     On  May  21  and  24,  1991,  the  above-referenced  tenant   and   owner,
     respectively, filed petitions for administrative review of  the  order  of
     April  26,  1991,  docketed  at   the   above-referenced   District   Rent
     Administrator number, in which said Administrator had determined that  the
     tenant had  been  overcharged  for  the  housing  accommodation  known  as
     Apartment 3C at 243 East 81st Street, New York City.

     The Commissioner notes that this proceeding was initiated prior  to  April
     1, 1984.  Sections 2526.1(a)(4) and 2526.1(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.

     This proceeding originated on March 23, 1984,  when  the  tenant  filed  a
     Complaint of Rent Overcharges with the predecessor of  the  D.H.C.R.   The
     owner's answer contained photocopies of purported leases for  the  subject
     premises, and based thereon the Administrator determined on  November  10,
     1986, that the  tenant  had  not  been  overcharged.   The  tenant  sought
     administrative review a month later, contending that leases  submitted  by
     the owner were not genuine.  In his petition the tenant  stated  that  one
     Daniel Leon Magida had resided in the subject apartment in 1979 and  1980.
     (The owner had not listed Magida in the rental history  he  had  provided,
     and had submitted leases, covering 1979 and 1980, in the  names  of  other
     purported tenants.)  In opposing that petition the owner stated he had  no
     record of a Daniel Leon Magida having occupied the subject premises.

     On October 12, 1989, the Commissioner  remanded  this  proceeding  to  the
     Administrator so that a hearing might be  held  to  determine  the  rental
     history of the apartment.

     That hearing took place on May 15, June 28 and August 2, 1990,  the  owner
     appearing personally and by counsel.  On February  12,  1991,  the  tenant
     wrote to the hearing officer that he had renewed his lease, for a rental 







          DOCKET NUMBER: FB 410460-RT & FE 410272-RO
     of $961.58, as of February 1.  On February 14, 1991, the  hearing  officer
     related, in a seven-page report to the Administrator, that  based  on  the
     testimony of six witnesses and on exhibits  placed  in  evidence,  (a)  at
     least three of the leases submitted by the owner were false, (b) the owner 
     had failed to submit leases for  three  actual  tenants  who  had  written
     leases and (c) the owner had known the aforementioned leases to  be  false
     when he had submitted them to the D.H.C.R.

     The aforementioned order, here appealed, followed.  Based on  the  hearing
     officer's  finding  that  the  leases  submitted  were  not  genuine,  the
     Administrator found therein that despite a D.H.C.R. request,  on  pain  of
     default, for complete copies of leases or  rent  records,  the  owner  had
     failed to provide a full rental history of  the  subject  apartment.   The
     Administrator  therefore  utilized  the  Section-42A  default   procedure,
     determining thereunder the legal regulated rent  and  the  net  overcharge
     through January 31, 1990.

     In appealing that order, the owner  argues  that  the  delay  between  the
     hearing and the issuance of the order denied him due process of  law.   He
     further argues that the Administrator erred in stating  that  the  hearing
     had resulted in a  conclusion  that  the  leases  he  had  submitted  were
     "fraudulent" rather than "genuine."  The tenant responds by stating  inter
     alia that the owner "has chosen to focus  only  on  the  .  .  .  evidence
     presented during the first  day  .  .  .  while  completely  ignoring  the
     detailed  testimony  and  evidence  presented  in   two   full   days   of
     continuances."  (Emphasis deleted.)

     The tenant's petition assigns error to the Administrator's  determinations
     not to (1) award a refund covering overcharges  though  the  date  of  the
     order and (2) award costs and attorney's fees against the owner.

     The Commissioner, having carefully considered the record as it pertains to 
     the appeals herein, is of the opinion that the owner's petition should  be
     denied, and the tenant's denied as to costs and fees, but  granted  as  to
     the period covered by the overcharge calculation.

     The owner, though represented by counsel, presents no  authority  for  his
     proposition that the amount of time between the hearing and  the  issuance
     of the order  denied  him  property  without  due  process  of  law.   The
     Administrator's order cannot therefore be disturbed based on delay between 
     the hearing and the issuance date.

     As to the owner's other claim herein, while the tenant is clearly  correct
     in pointing out that the owner has simply ignored  the  second  and  third
     days of the hearing, it is also obvious (1) that the owner's real  quarrel
     is with the Administrator's statement that  fraud  has  been  found  as  a
     result of the hearing and (2) that the owner disagrees with that statement 
     because he is simply unaware of the hearing officer's report.   Fraud  was
     of course found therein; the report, however, was not sent to the parties, 
     so that the remaining question is whether the fact that the owner was  not
     sent a post-hearing report constitutes prejudicial error.

     The owner's due process rights encompassed  adequate  notice  and  a  fair
     hearing.  His petition makes no complaint  about  notice.   Nor  does  the
     owner argue that the hearing was conducted in an unfair manner.  






          DOCKET NUMBER: FB 410460-RT & FE 410272-RO
     Hearing reports--internal documents addressed  to  the  Administrator--are
     not rquired to be sent to  the  parties.   This  petitioner  received  the
     requisite notice of hearing, and  since  agency  policy  did  not  dictate
     sending him a copy of the report in question, there was no  error  in  the
     fact that was not done.

     In sum, because due process of law was not denied  to  the  owner  by  the
     hiatus between the hearing and the time the order was issued, and  because
     the Administrator correctly cited the hearing officer's finding  regarding
     fraud, there is no merit to the owner's appeal.

     The tenant's petition has, as mentioned  above,  one  meritorious  ground.
     The petition asserts, without contradiction,  that  through  the  tenant's
     opening statement, direct  testimony  and  documentary  evidence  and  the
     owner's cross-examination testimony, the  existence  of  a  new  lease  of
     February 1, 1990, was made known to the hearing officer.  And as mentioned 
     above the tenant did write to that officer in February  1991,  stating  he
     had signed yet another lease (for $961.58).  The record  further  reflects
     that within a week of the issuance of the order herein, the  tenant  wrote
     to  the  Administrator,  requesting  that  the  latter   recalculate   the
     overcharge by including the fifteen months subsequent to the  cutoff  date
     employed in the order.  The above makes clear that the  Administrator  was
     on notice to inquire into the rental history  herein  from  the  time  the
     matter went to the hearing officer.  His failure so to inquire was  error.
     The Commissioner has therefore assembled the rental history  omitted  from
     the order and has calculated the overcharge on the chart attached to  this
     order and opinion and hereby made a part hereof.

     The remaining assignment of error is that the Administrator erred  in  not
     assessing the tenant's  costs  and  attorney's  fees  against  the  owner.
     Pursuant  to  Section  2526.1(d)  of  the  Rent  Stabilization  Code,  the
     assessment of attorney's fees is discretionary with the  Administrator.The
     Commissioner finds that the petitioner did not adequately substantiate all 
     of said costs and fees, and therefore that the assessment thereof  is  not
     appropriate in this case.

     In sum, the only determination of the Administrator that the  Commissioner
     will not sustain, is that of computing overcharges  through  January  1990
     only.

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











          DOCKET NUMBER: FB 410460-RT & FE 410272-RO
     ORDERED, that the owner's petition be and the same hereby is  denied,  and
     that the tenant's petition be, and the  same  hereby  is  granted  to  the
     extent of recalculating the overcharge as  set  forth  above  and  on  the
     attached chart; the Administrator's order is otherwise affirmed.  

     This order may be docketed and enforced in the same manner as a  judgement
     of the Supreme Court, in the amount of the total overcharge herein,  which
     is $92,558.68.

     ISSUED:











                                                                   
                                     JOSEPH A. D'AGOSTA
                                     Deputy Commissioner

                                          
    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name