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. FC410230RO
                                              :  DRO DOCKET NO. BB410035RP
               LINCOLN PLAZA ASSOCIATES

                                PETITIONER    : 
          ------------------------------------X                             
             ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


               On March 20, 1991, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on 
          February 15, 1991, by the Rent Administrator, 92-31 Union Hall 
          Street, Jamaica, New York, concerning the housing accommodations 
          known as 20 West 64th Street, New York, New York, Apartment No. 40P, 
          wherein the Rent Administrator determined that the owner had 
          overcharged the tenant.

                    The Commissioner notes that this proceeding was filed 
          prior to April 1, 1984.  Sections 2526.1 (a) (4)  and 2521.1 (d) of 
          the Rent Stabilization Code (effective May 1, 1987) governing rent 
          overcharge and fair market rent proceedings provide that 
          determination of these matters be based upon the law or code 
          provisions in effect on March 31, 1984.  Therefore, unless otherwise 
          indicated, reference to Sections of the Rent Stabilization Code 
          (Code) contained herein are to the Code in effect on April 30, 1987.

               The Administrative Appeal is being determined pursuant to the 
          provisions of Section 2526.1 of the current Rent Stabilization Code 
          and Section 42A of the prior 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 in March 1984, by the 
          tenant's filing of a complaint of rent overcharge in which the 
          tenant stated in substance that he first moved to the subject 
          apartment on June 1, 1979 at a rental of $1150.00 per month.

               The owner was served with a copy of the tenant's complaint and 
          directed to submit a full rental history from the June 30, 1974 base 
          date.  The owner failed to comply with such directive and on August 
          11, 1986, the Rent Administrator, under Docket L3112011R, issued an 
          order finding a rent overcharge of $22,969.10 based on the owner's 
          default.  The overcharge was calculated through June 1, 1984 on a 
          FC410230RO








          FC410230RO


          finding that the subject apartment was converted to a condominium 
          effective June 1, 1984.  In such docket, the owner was listed as 
          Milford Management and the prior owner was listed as Lincoln Plaza 
          Assoc. - the owner herein.

               On September 12, 1986, the tenant herein, under Docket 
          AI410039RT, filed a petition for administrative review in which the 
          tenant stated that it did not purchase the subject apartment.  On 
          January 8, 1987, the Commissioner issued an order remanding the 
          proceeding to the Rent Administrator to consider the tenant's 
          petition as well as anything offered by the owner in the owner's 
          answer to the petition and in the owner's own petition filed under 
          Docket AI410186RO.

               On September 23, 1986, Milford Management Corp. filed a 
          petition for administrative review under Docket AI410186RO.  Said 
          petition was dismissed on October 24, 1986 as not timely, then 
          reopened on December 11, 1986 when the owner proved timeliness, and 
          finally terminated on July 12, 1990 due to a subsequent order issued 
          by the Rent Administrator on February 24, 1988 under Docket 
          BB410035RP (issued after the remand of the tenant's petition 
          AI410039RT). 

               In the order issued under Docket BB410035RP, the Rent 
          Administrator again defaulted the owner for the failure to submit a 
          complete rental history, and found a rent overcharge totalling 
          $50,486.31 through November 4, 1987 since it was found that the 
          tenant had purchased the subject apartment under a condominium 
          conversion plan on November 4, 1987.  In this order Milford 
          Management was listed as the current owner and Lincoln Plaza Assoc. 
          - the owner herein - was listed as the prior owner.  In addition, 
          the attorney of the owner herein was served with a copy of the 
          order.  DHCR records show that no one filed an appeal against such 
          order.

               Subsequently, the tenant's attorney in a letter dated November 
          27, 1990, advised that the February 24, 1988 order could not be 
          enforced as a judgment since Lincoln Plaza Associates was the owner 
          at all relevant times while Milford Management Corp. was the 
          managing agent.

               On February 15, 1991, the Rent Administrator issued an amended 
          order under Docket BB410035RP which superseded the February 24, 1988 
          order and listed Lincoln Plaza Associates as the owner and Milford 
          Management as the managing agent.  In all other respects including 
          the issuance date of February 24, 1988, the order remained the same.

               In this petition against the February 15, 1991 amended order, 
          Lincoln Plaza Associates alleges in substance that the owner did not 
          default since it was only required to submit a rental history from 
          April 1, 1980, pursuant to Section 2526.1 of the Rent Stabilization 
          Code, that treble damages are not warranted,  and that in any event 
          treble damages were wrongly assessed during a period when a court 
          determination set a "use and occupancy" amount to be collected.






          FC410230RO


               In answer to the owner's petition, the tenant stated in 
          substance that the owner should be barred from contesting the Rent 
          Administrator's order on the merits since it did not file a timely 
          appeal to the February 24, 1988 order and that the only issue 
          appealable from the amended order herein is whether Lincoln Plaza 
          Associates was the actual owner and such fact is not contested by 
          the owner in its petition.  The tenant further contended that the 
          Rent Administrator's order is correct on the merits in defaulting 
          the owner for its failure to submit a full rental history from the 
          June 30, 1974 base date.

               The Commissioner is of the opinion that this petition should be 
          denied.

               DHCR records do not indicate that the owner herein filed a 
          timely petition for administrative review against the order issued 
          on February 24, 1988, but merely indicate that the owner filed an 
          appeal against the correcting order issued on February 15, 1991.  
          Where a District Rent Administrator issues a correcting order of an 
          earlier order and the correction does not affect the substance of 
          the proceeding, the second order does not give a party aggrieved by 
          the first order, who had failed to appeal the first order, a new 
          right to file an administrative appeal. (Accord: ART10467K, 
          ARL10807K).  Since the correction involved here, a change in the 
          amount of time the owner herein owned the subject premises and a 
          change in listing the managing agent as the managing agent and not 
          as a new owner, did not affect the substance of the order - the 
          amount of the overcharge found due -  the owner's right to file an 
          administrative appeal of the substance of the order was not revived.

               Moreover turning to the substance of the petition, the owner's 
          contentions on appeal have no merit.
               
               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) and to produce such records to the 
          DHCR upon demand.

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







          FC410230RO

          the legislative intent of the Omnibus Housing Act (Chapter 403, 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 rights 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 four years prior to April 1, 1984 of the 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. Mgmt. 
          v. Eimicke, 148 A.D.2d 610. 539 N.Y.S. 2d 667 (App. Div. 2d Dept., 
          1989). motion for leave to reargue or for leave to appeal to the 
          Court of Appeals denied ( App. Div. 2d Dept., 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 four 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 Dept. 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 First Department, the owner was required to submit a rental 
          history from June 30, 1974.  Since the owner has failed to submit a 
          complete rental history from June 30, 1974 and only submitted a 
          rental history from 1977, the Rent Administrator's order finding a 
          rent overcharge utilizing DHCR default procedures was warranted.  
          With regard to treble damages, the owner has submitted no evidence 
          to disclose that the overcharge was not willful.  Accordingly, the 
          imposition of treble damages was warranted.  With regard to the 
          owner's contention that there could be no treble damages during the 
          period the housing court determination found that the tenant would 
          pay a certain amount as "use and occupancy", the Commissioner notes 




          that such determination was without prejudice to the rights of the 
          owner and the tenant and thus this court order did not preclude the 
          imposition of treble damages on rent overcharges.  Therefore the 
          Rent Administrator's order was warranted.


          FC410230RO


               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.

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

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

          ISSUED



                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner





                     



































    

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