GE 210208 RO

                                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. GE 210208 RO

                                          :  DISTRICT RENT OFFICE
                                             DOCKET NO. ZED 210227 R
          Norman Henry,                  
                                             TENANT: Nathaniel Lewis          
                  
                            PETITIONER    : 
      ------------------------------------X                             

           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                                         

      On May 22, 1992, the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on April 23, 1992, by the 
      Rent Administrator, 92-31 Union Hall Street, Jamaica, New York, 
      concerning the housing accommodations known as 469 St. Johns Place, 
      Brooklyn, New York, Apartment No. 4A, wherein the Rent Administrator 
      determined that the owner had overcharged the tenant.

      The Administrative Appeal is being determined pursuant to the provisions 
      of Section 2526.1 and Section 2528.4(b) 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 of a complaint by 
      the tenant on April 18, 1990 stating that there was an excessive 
      increase in the prior tenant's rent and that the apartment was not 
      registered with DHCR for the years 1985, 1986 and 1989.

      The owner was served with the tenant's complaint and requested to submit 
      leases from April 1, 1986 and proof of registration for 1985, 1986, 1990 
      and 1991.  

      In response to the Notice of Intent to Impose Treble Damages, the owner 
      forwarded a submission post marked April 3, 1992, containing the Annual 
      Registration Summaries for the subject building for 1987, 1988, 1989, 
      1990 and 1991, along with annual apartment registrations for the subject 
      apartment for 1987, 1988, 1989, 1990 and 1991.  No documentation 
      substantiating the filing of these documents with DHCR was included.


      In Order Number ZED 210227 R, the Rent Administrator established the 
      lawful stabilized rent as $300.59 effective November 11, 1988; due to 
      non-registration for the years 1985, 1986 and 1990, the collectible rent 







          GE 210208 RO

      was frozen at the rent in effect on April 1, 1984 which was $250.50 and 
      a refund of $28,358.00 including treble damages was directed to be 
      refunded to the tenant.  In was also noted in said order that the owner 
      had failed to submit a complete rental history from April 1, 1986 as 
      directed so that the lawful stabilization rent was calculated from the 
      subject tenant's vacancy lease. 

      In this petition, the owner contends in substance that the "order was 
      mailed before the documents reached your office April 3, 1992" and that 
      the prior tenant had a signed lease for $412.50 which was the basis of 
      the complainant's lease of $450.00 which included $12.75 for new 
      equipment.

      Along with the petition, the owner submitted the following documents 
      purported to have been submitted to the Rent Administrator on April 3, 
      1992.

           1)   leases in effect for the subject apartment from November 1, 
                1986 through March 31, 1994

           2)   annual apartment registrations for the subject apartment for 
                1985 and 1986 plus the initial 1984 apartment registration

           3)   a bill from "M. Land used refrigerator Corp" dated January 
                1985 for a new stove and new refrigerator at a cost of 
                $863.83.

           4)   a receipt for multiple dwelling registration post-marked 
                January 24, 1992, from HPD (Dept of Housing Preservation and 
                Development).

      No substantiation was provided that the above documents were submitted 
      to the Rent Administrator in a separate mailing on April 3, 1992 or that 
      these documents were included in the April 3, 1992 submission to the 
      Rent Administrator which is in file.

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

      Sections 2528.2 and 2528.3 of the Rent Stabilization Code (hereafter 
      RSC) outline the owner's obligations under the Omnibus Housing Act to 
      register subject housing accommodations with DHCR.

      Section 2528.4(b) of the RSC provides, in pertinent part, that the 
      penalty for failure to annually register an apartment will be that the 
      owner will be barred from collecting any rent in excess of the legal 
      regulated rent in effect on April first of the year for which an annual 
      registration was required to be filed... and that the late filing of the 
      registration shall result in the elimination prospectively of such 
      penalty.

      An examination of DHCR records in this case discloses that the subject 
      building and apartment were not registered for the years 1985, 1986 and 
      1990.  Further, no substantiation that registrations for those years 
      were filed, was submitted either below or on appeal.

      In addition, the owner has failed to substantiate that the leases and 
      registrations included with the owner's petition were submitted in the 
      proceeding before the Rent Administrator.


          GE 210208 RO


      Since this is not a de novo proceeding the owner's contention that it 
      had submitted leases from April 1, 1986, as directed by the Rent 
      Administrator cannot be considered for the first time on appeal.

      Moreover, even on appeal, the owner has only submitted leases from 
      November 1, 1986.

      The Commissioner notes that although, the owner filed the 1986 
      registration in August 1992 after the issuance of the Rent 
      Administrator's order, DHCR records continue to show no 1985 
      registration on file for the subject apartment and therefore, the 
      prospective elimination of the penalty and restoration of the legal 
      regulated rent is stayed, until the owner completes the missing annual 
      registrations for the subject apartment.

      Accordingly, the Rent Administrator's order was warranted.

      The owner is directed to reflect the findings and determination 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 determination 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. 

      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 or not 
      in excess of twenty percent per month thereof may of offset against any 
      rent thereafter due the owner.

      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
                                      Acting Deputy Commissioner








    

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