GC410330RO

                                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  SJR 6859 (Mandamus)
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NO. GC410330RO

                                          :  DISTRICT RENT OFFICE
           West 58th Street Realty           DOCKET NO. ZCD410230R
           (Pan Am Equities, Mgr.),          
                                             TENANT: Peter S. Van Bloem, Jr.  
                        
                            PETITIONER    : 
      ------------------------------------X                             

          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                                     IN PART


      On March 28, 1991 the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on February 28, 1991 by 
      the Rent Administrator, 92-31 Union Hall Street, Jamaica, New York 
      concerning the housing accommodations known as 462 West 68th Street,    
      New York, New York, Apartment No. 4E wherein the Rent Administrator 
      determined that the owner had overcharged the tenant.  The order 
      incorrectly gave the tenant's last name as "Vanbluem" rather than as 
      "Van Bloem, Jr.".

      Subsequent thereto, the petitioner-owner filed a petition in the Supreme 
      Court pursuant to Article 78 of the Civil Practice Law and Rules 
      requesting that the Court mandate an expeditious determination of the 
      petitioner's administrative appeal.  

      The Administrative Appeal is being determined pursuant to the provisions 
      of Sections 2526.1 and 2528.4 of the 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 by the filing in April, 1988 of 
      a rent overcharge complaint by the tenant, who stated that he had 
      commenced occupancy on November 1, 1985 at a rent of $946.80 per month.

      In answer to the complaint, the owner stated in substance that there had 
      been only a de minimus overcharge of $3.84 total in the first three 












          GC410330RO

      years of the complaint's occupancy, that such overcharge had been 
      refunded to him, and that the subject apartment had been registered for 
      all years.

      In an order issued on February 28, 1991 the Administrator, freezing the 
      lawful rent at the amended 1984 rent since the owner had not shown that 
      it had registered the subject apartment for 1985, found an overcharge of 
      $24,853.29, including treble damages, as of October 31, 1989.

      In this petition the owner contends in substance that it previously 
      submitted a copy of the 1985 registration which had been duly served and 
      filed, proof of mailing of the 1986 registration to the tenant on June 
      11, 1986, and proof of receipt by the DHCR on July 18, 1986 of an Annual 
      Registration Summary which dealt with the 1985 registration done in- 
      house by the owner; that it would be illogical for there to be two 1986 
      registrations, so the second one must logically be the 1985 
      registration; that this clearly establishes proof of service of the 1985 
      amended registration on the tenant; that the Administrator may not have 
      considered these materials, submitted on February 15, 1991, in the March 
      1, 1991 order; and that in any event treble damages would not be 
      warranted since the owner voluntarily reduced the rent in 1984 and since 
      it had a good faith belief that the subject apartment was properly 
      registered each year.

      The tennat submitted an answer disputing some of the owner's 
      contentions.  Such contentions by the owner are dealt with in the 
      decisional portion 
      of this order.

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

      The Commissioner finds that the owner should be considered to have filed 
      a registration for the subject apartment for 1985.  The owner submitted 
      three documents pertaining to registrations.  One was an apartment 
      registration dated May 30, 1985, using the RR-1 form designed for the 
      initial registration, and stating that the rent had changed to $849.06 
      effective June 1, 1984 due to a "rent rollback."  Other documents 
      previously submitted by the owner indicate that, while the owner started 
      charging that rent on June 1, 1984, it also refunded $254.05 (5 months 
      overcharge of $50.81 [$899.87 - $849.06] per month) to the prior tenant, 
      which meant that the rent was actually reduced to $849.06 effective 
      January 1, 1984.  In effect that registration, on an initial 
      registration form and not mentioning the April 1, 1985 rent, was an 
      amended initial registration and not a 1985 annual registration.  The 
      owner also submitted an affidavit from the Rent Stabilization Assocation 
      about a mailing to tenants on June 11, 1986.  As the mailing was 
      specifically stated to be of the 1986 registration, it gives no evidence 
      regarding the 1985 registration.
      The third document submitted by the owner was an "Annual Registration 
      Summary," received by the DHCR on July 18, 1986.  This is on a form for 
      the 1985 registration.  In the affirmation portion "1985" was changed to 






          GC410330RO

      read that the affirmation was made on July 8, 1986, but the date was not 
      changed on the heading of Item 16, which read "Type of Units In Building 
      on April 1, 1985."  Under that category the owner had listed 40 occupied 
      apartments and one vacant unit.  The summary also stated that the rent 
      of 19 of the 41 units had not changed since the initial registration.  
      The computerized DHCR registration system shows 41 apartments registered 
      in 1984, one of them (#1A) with an employee.  In 1985 there are only 28 
      units listed, one of them (#1A) being vacant.  Six of the 28 have the 
      same rents as in 1984.  (This means that 13 out of 13 of the missing 
      apartments would need to have unchanged rents to make 19 out of 41; that 
      may have some relationship to their not showing up on the DHCR system.)  
      In 1986 there are 40 listed, with no vacancies.  (#1A is absent, and not 
      registered subsequently except in 1990 and 1992).  Only three of the 40 
      apartments have the same rents as in 1984.  It is clear that the Annual 
      Registration Summary is referring to the 1985, rather than 1986, 
      registration even though it was submitted in 1986.  The DHCR 
      registration system shows that partial registration information was 
      received from the owner on September 11, 1985.  After further 
      correspondence, registration information for 28 apartments (not 
      including the subject apartment) was input into the system on May 19, 
      1986.  The Annual Registration Summary received by the DHCR on July 18, 
      1986 may therefore have represented an attempt by the owner to finally 
      register all 41 apartments.

      The base date tenant in the subject apartment had a lease expiring 
      December 31, 1985 at a rent of $899.87 per month.  In 1984 the owner 
      retroactively reduced that rent to $849.06.  The 1985 registration would 
      have shown that rent since the same tenant was in occupancy on April 1, 
      1985.  When the complainant commenced occupancy on November 1, 1985 his 
      rent was set at the proper increase over $849.06.  Policy Statement 92-3 
      provides that, for years prior to 1988, the filing of an initial or 
      annual registration may be established by the totality of the evidence, 
      provided that DHCR records corroborate an owner's substantial compliance 
      with the registration requirements for a building.  The Commissioner 
      finds, based on the previously mentioned factors, including the fact 
      that the owner sent the DHCR a notarized Apartment Registration Summary 
      form transmitting registration forms for all the apartments (two thirds 
      of which do show up on the DHCR registration system) in a year for which 
      it would have had no reason not to register the subject apartment for 
      1985 (since the rent would have been the same as in the amended initial 
      registration, and would have been consistent with the complainant's rent 
      listed in the 1986 registration, which had already been filed a month 
      earlier), that the owner should be considered to have filed the 1985 
      registration for the subject apartment in July, 1986.  Since there is no 
      evidence that the 1985 registration was served on the DHCR before that 
      time, the owner is not entitled to increase the rent above $849.06 until 
      August 1, 1986, the next rent payment date following July 18, 1986.  
      Based on all the circumstances, the Commissioner does not find that the 
      overcharge resulting from freezing the rent for nine months should be 
      considered to be willful, so interest is imposed on the overcharges.  
      The Commissioner has recalculated the lawful stabilization rents and the 
      amount of overcharge.  They are set forth on an amended rent calculation 












          GC410330RO

      chart attached hereto and made a part hereof. 

      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 is being sent to the current occupant of the subject 
      apartment.

      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 overcharge are established on the 
      attached chart, which is fully made a part of this order.  The total 
      overcharge is $1,274.20 as of October 31, 1989 and the tenant is 
      designated as Peter S. Van Bloem, Jr. rather than as Peter Vanbluem.


      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner
    

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