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  S.J.R. NO.: 6452
       IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
       APPEAL OF                              DOCKET NO.:GB 410302-RT
                                           :  
           PAN AM EQUITIES, INC.,             RENT ADMINISTRATOR'S
                                              DOCKET NO.: EC 410046-R
                             PETITIONER    : 
       ------------------------------------X  Tenant: Marisa Fleming     

             ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW

       On February 28, 1992, the above-named owner filed a petition for 
       administrative review of an order issued on January 30, 1992 by a District 
       Rent Administrator concerning the housing accommodations known as 306 Est 
       89th Street, Apartment 1D, New York, New York wherein the Administrator 
       determined that an overcharge had occurred.

       Subsequently, and after more than ninety days had elapsed from the time it 
       filed its petition for administrative review, the owner deemed its petition 
       as having been denied, and sought judicial review in the supreme Court of 
       the State of New York pursuant to Article 78 of the Civil Practice Law and 
       Rules.

       By stipulation dated August 7, 1992, the court proceeding was withdrawn on 
       condition that the Division of Housing and Community Renewal (DHCR) render 
       a determination within 90 days of August 7, 1992.

       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 by the administrative appeal.  

       This proceeding was commenced by the filing of a rent overcharge complaint 
       on March 1, 1990.

       The owner in its answer states that it had registered the subject apartment 
       and had taken only appropriate guideline increases plus an appropriate 
       vacancy improvement allowance.  The owner acknowledged an overcharge had 
       occurred by virtue of an allegedly inadvertent error in which the owner took 
       two guideline increases in the same guideline period.  Further the owner 
       alleged that it had prepared a refund check for the amount of the overcharge 
       but could not locate the tenant who had vacated the subject apartment.  
       Finally, the owner alleged that it would adjust all future rents to reflect 
       this acknowledge error.  Accordingly, the owner alleged no treble damages 
       should be assessed.

       Submitted with the answer the owner included copies of the prepared refund 
       checks and documentation of the vacancy improvements.











          DOCKET NUMBER: GB 410302-RO
       The tenant subsequently advised DHCR of her new address and acknowledged the 
       existence of the vacancy improvements.  In her letter, she stated that she 
       did not know whether the initial registration for the subject apartment was 
       challenged or the age of the vacancy improvements.

       In the order here under review, the Administrator found that the owner had 
       sufficiently documented its claim for vacancy improvements.  However, by 
       virtue of the owner's failure to register the subject apartment in 1987, the 
       Administrator froze the rent from 1987 through the date of issuance.  In 
       addition, the Administrator assessed treble damages.  Accordingly, the 
       Administrator determined that the lawful stabilization rent was $449.81 and 
       total overcharges were $14,422.68 including treble damages.

       In its petition for administrative review the owner reasserts that no 
       overcharges occurred, and alleges that it had registered the subject 
       apartment in 1987.  It submits a certification from the Rent Stabilization 
       Association to document its claim.

       The tenant submitted no answer to the petition for administrative review.

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

       A reexamination of DHCR records discloses that the Subject was, in fact, 
       registered in 1987.  The Administrator order was based solely on an 
       inadvertent clerical error and must be revoked.

       Finally, the owner has clearly shown a lack of willfulness in this 
       proceeding.  The owner refunded or attempted to refund the full overcharge 
       including interest within the time period allotted to the owner to answer.  
       Further, DHCR records indicate that the owner had, in fact, adjusted 
       subsequent rents in accordance with its acknowledged overcharge.

       Accordingly, if the tenant has rejected the owner's tender of the 
       overcharge, the owner is directed to refund such amounts plus 9% interest 
       immediately.

       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 granted, and that the order of the Rent Administrator be, and the 
       same hereby is, revoked.

       ISSUED:



                                                                     
                                            JOSEPH A. D'AGOSTA
                                        Acting Deputy Commissioner




    

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