FG210183RO
                             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. FG210183RO

                                          :  DISTRICT RENT OFFICE
           Anna Kaczmarek,                   DOCKET NO. ZCH210087R
                                             
                                             TENANT: Tadeusz Wit          
                            PETITIONER    : 
      ------------------------------------X                             

          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                                     IN PART

      On July 18, 1991 the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on July 3, 1991 by a Rent 
      Administrator concerning the housing accommodations known as Apartment 
      4L at 53 Newell Street, Brooklyn, New York wherein the Rent 
      Administrator determined that the owner had overcharged the tenant.  The 
      Administrator's order incorrectly referred to the subject apartment as 
      being at 55 Newell Street, which is the owner's address.

      The issue in this appeal is whether the Rent Administrator's order was 
      warranted.

      The applicable sections of the Law are Section 26-516 of the Rent 
      Stabilization Law and Section 2526.1(a) of the Rent Stabilization Code.

      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, 1988  
      of a rent overcharge complaint by the tenant, in which he stated that he 
      had commenced occupancy on September 1, 1980 at a rent of $200.00 per 
      month.  The tenant's complaint referred to the apartment as being 
      Apartment 7 rather than Apartment 4L.  In said complaint, the tenant 
      stated that he received his apartment registration in 1988, and also 
      stated at one point that he had not received it at all.  

      The owner was served with a copy of the complaint and was requested to 
      submit rent records to prove the lawfulness of the rent being charged.  
      In answer to the complaint, the owner stated that there had been only 
      lawful increases since the 1984 base date, that the tenant had refused 
      to sign any leases until 1987, and that the apartment number was 4L 
      rather than 7.  (DHCR notices through December 7, 1990 referred to it as 
      Apartment 7.)












          FG210183RO


      In an order issued on July 3, 1991 the Administrator, using DHCR default 
      procedures because the owner had not submitted leases from April 1, 
      1984, and freezing the rent because the owner had not registered in 
      1984, determined an overcharge of $29,645.79 through July 31, 1991.

      In this petition, the owner contends in substance that the DHCR did not 
      use the information which she submitted twice.  With her petition the 
      owner has enclosed among other things copies of certified rent rolls 
      obtained from the DHCR prior to the Administrator's order, showing the 
      subject apartment as being registered for 1984, and a copy of the 1984 
      apartment registration, dated June 27, 1984.

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

      The file of the proceeding before the Administrator contains a printout 
      from the DHCR's computerized rent registration system, showing that 
      information on the 1984 registration of the subject apartment was 
      entered into the system on August 6, 1984.  It is not apparent why the 
      Administrator ignored this, unless it was related to the tenant's 
      initial listing of his apartment as being number 7 rather than number 
      4L.  Also, the DHCR's microfilm copy of the registration also indicates 
      that the subject apartment was registered in 1984.  The registration 
      summary, listing eight apartments in the building, was dated June 27, 
      1984 and notarized by someone whose notary commission would expire March 
      30, 1985.  The microfilm roll contains individual registrations for 
      eight apartments in the building, including the subject apartment.  The 
      Administrator was unwarranted in finding that the subject apartment was 
      not registered for 1984.  Further, the tenant's original complaint was 
      not clear as to whether service of the 1984 apartment registration on 
      the tenant was an issue, so that the matter of such service on the 
      tenant has properly not been considered herein.

      While the Administrator defaulted the owner for not having submitted 
      leases from April 1, 1984, the base date four years prior to the 
      tenant's complaint, the tenant's complaint listed rents from 1980 
      through 1985, and the tenant did not dispute the owner's contention that 
      he had refused to sign leases until 1987.  In 1984, 1985 and 1986 the 
      owner and tenant acted as if the tenant were getting one-year renewal 
      leases.  The Commissioner finds it appropriate to deem one-year renewal 
      leases for those years, particularly aided by the fact that that the 
      increases that the owner charged for the deemed lease periods after 
      April 1, 1984 were less than she could have charged.  Taking these 
      factors into account, the Commissioner has recalculated the lawful 
      stabilization rents and the amount of overcharge.  They are set forth on 
      an amended rent calculation chart attached hereto and made a part 
      hereof.  Treble damages are imposed on the overcharges, since the owner 
      has not shown that they were not willful.

      The Administrator's order is also hereby modified to state the address 
      of the subject apartment as being 53 Newell Street rather than 55 Newell 






          FG210183RO

      Street. 

      The owner is directed to reflect the findings and determinations made in 
      this order on all future registration statements, including those for 
      the current year if not already filed, citing this Order as the basis 
      for the change.  Registration statements already on file, however, 
      should not be amended to reflect the findings and determinations made in 
      this order.  The owner is further directed to adjust subsequent rents to 
      an amount no greater than that determined by this order plus any lawful 
      increases. 

      The Commissioner has determined in this Order and Opinion that the owner 
      collected overcharges of $1,338.83.  Upon expiration of the period for 
      seeking review of this Order and Opinion pursuant to Article Seventy- 
      eight of the Civil Practice Law and Rules, not in excess of twenty 
      percent per month of the overcharge may be offset against any rent 
      thereafter due the owner.  The tenant may add to the overcharge interest 
      at the rate payable on a judgment pursuant to section 5004 of the Civil 
      Practice Law and Rules from the issuance date of the Rent 
      Administrator's Order to the issuance date of the Commissioner's Order.

      If the owner has already complied with the Rent Administrator's order 
      and there are arrears due to the owner as a result of the instant 
      determination, the tenant shall be permitted to pay off the arrears in 
      twenty four equal monthly installments.  Should the tenant vacate after 
      the issuance of this order, or have already vacated, said arrears shall 
      be payable immediately.

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

      ORDERED, that this petition be, and the same hereby is, granted in part 
      and that the Rent Administrator's order be, and the same hereby is, 
      modified in accordance with this order and opinion.  The lawful 
      stabilization rents and the amount of the rent overcharge are 
      established on the attached chart, which is fully made a part of this 
      order.  The total overcharge is $1,338.83, including excess security of 
      $11.18, as of July 31, 1991.


      ISSUED:

                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner






    

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