Docket Nos. FB210189RO and FI210057RO
                                    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
          APPEALS OF                              DOCKET NOS. FB210189RO   
                                                        and   FI210057RO

                                                  DISTRICT RENT             
          MYRIAM BUSTAMANTE,                      ADMINISTRATOR'S DOCKET
                                                  NOS. CJ210348R and  
                                                       KC000499AD
                                   PETITIONER
          ------------------------------------X


            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW, 
          FILED UNDER DOCKET NO. FB210189RO; AND ORDER AND OPINION GRANTING 
          PETITION FOR ADMINISTRATIVE REVIEW IN PART, FILED UNDER DOCKET NO. 
          FI210057RO



               On February 19, 1991, the above-named landlord filed a 
          petition for administrative review, under Docket No. FB210189RO, of 
          an order issued on January 15, 1991 by an Administrator concerning 
          the housing accommodation known as Apartment 2L, 146 20th Street, 
          Brooklyn, New York.  On September 12, 1991, the above-named 
          landlord filed a petition for administrative review, under Docket 
          No. FI210057RO, of an order issued on August 8, 1991 by an 
          Administrator concerning the above-mentioned housing accommodation.

               Since the petitions involve common questions of law and fact, 
          the Commissioner deems it appropriate to consolidate the 
          proceedings for disposition herein.

               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 appeals.

               The subject tenant filed an overcharge complaint, dated August 
          23, 1988.

               To his complaint the subject tenant attached an affidavit 
          sworn to on August 23, 1988.  In his affidavit the subject tenant 
          asserted, among other things, that he initially resided in 
          Apartment 1R, at a monthly rent of $100.00; that in March, 1985, 
          the subject tenant was informed by the prior landlords that they 
          needed the above-mentioned apartment "for their relatives," and 












          Docket Nos. FB210189RO and FI210057RO

          that those landlords informed the subject tenant that he had to 
          "move upstairs to Apt. 2L," and that when the tenant moved into 
          Apartment 2L his rent was increased to $300.00 per month; that the 
          tenant moved and paid the above-mentioned rent increase because he 
          was not aware of his rights as a rent regulated tenant, and that he 
          thought that he would be evicted if he didn't move.

               The subject tenant also attached to his complaint, among other 
          things, copies of his rent receipts for the period from November, 
          1984 through February 28, 1985, which noted that during the above- 
          mentioned period the subject tenant resided in Apartment 1R, and 
          paid a monthly rent of $100.00; and he attached some copies of rent 
          receipts for the period from March 1, 1985 through October 31, 
          1986, which noted that during the above-mentioned period the 
          subject tenant resided in Apartment 2L, and paid a monthly rent of 
          $300.00.

               On November 7, 1988, the rent agency mailed to the subject 
          landlord a copy of the tenant's complaint, and a notice directing 
          the landlord to submit an answer which should include 
          "substantiating proof" for all rent increases including, among 
          other things, the installation of new equipment and major capital 
          improvements (M.C.I.).

               The subject landlord submitted an affidavit sworn to on 
          November 30, 1988 in which she asserted, among other things, that 
          in March, 1985 the prior landlords "told tenant they needed his 
          apartment for their relatives, and asked tenant to move upstairs to 
          Apt. 2L, where he lived until he died Nov. 12, 1988," and that she 
          believed that the tenant had been paying the legal rent.

               On January 30, 1989, the subject tenant's attorney submitted 
          a letter which stated that:  "Please substitute Michael Polonis as 
          Administrator for the Estate of the tenant, who died on November 
          12, 1988."

               On December 11, 1990, the Administrator mailed to the parties 
          a "Notice of Commencement of Proceeding to Determine Facts or Fix 
          Maximum or Legal Regulated Rent."  In the above-mentioned notice 
          the Administrator proposed to determine the status and the legal 
          rent of the subject apartment, and that the Administrator directed 
          the parties to file an answer to the proposed action within twenty 
          days of the above-mentioned date.

               In the subject landlord's response, dated December 31, 1990, 
          she alleged, among other things, that she does not possess the 
          subject apartment's rent history prior to her acquisition of title 
          to the subject building on June 24, 1987, except for a copy of the 
          1985 apartment registration; and that in the contract of sale of 
          the subject building the prior landlord represented that all of the 
          apartments were decontrolled.







          Docket Nos. FB210189RO and FI210057RO

               In the subject tenant's response, dated December 31, 1990, he 
          asserted, among other things, that his move from Apartment 1R to 2L 
          was involuntary; that he received a letter from the prior 
          landlord's attorney (the tenant stated that the name of the tenant 
          in the letter was incorrect) which stated that:  "Also be advised 
          that your apartment is decontrolled, and landlord will seek 
          possession of your apartment in the near future."

               To his response the subject tenant attached a copy of the 
          above-mentioned letter, dated October 17, 1984, which was addressed 
          to "Mr. Eddie Louis" in Apartment 2 of the subject building.

               In the order under review herein issued on January 15, 1991 
          under Docket No. CJ210348R, the Administrator stated that:

               Our records disclose that an application for late 
               enrollment with the Rent Stabilization Association was 
               denied and, therefore, by operation of law all units in 
               subject premises became subject to the New York City Rent 
               & Eviction Regulations (Rent Control) as of May 22, 1984.

          Furthermore, the Administrator's order determined that the subject 
          apartment's maximum rent should be determined in the proceeding 
          then pending before the rent agency under Docket No. KC000499AD.

               On July 10, 1991, the Rent Administrator mailed to the parties 
          a proposed order for the proceeding under Docket No. KC000499AD.  
          In the proposed order, the Administrator directed the subject 
          landlord, among other things, to submit proof that the subject 
          building was properly registered with the Rent Stabilization 
          Association (R.S.A.) prior to April 1, 1984, as the rent agency's 
          records show that the subject building was never registered with 
          the R.S.A.

               In the order under review herein issued on August 8, 1991 
          under Docket No. KC000499AD, the Administrator noted that on May 
          22, 1984 the rent agency issued an order denying the landlord's 
          application to file a late registration with the R.S.A., and that 
          the subject landlord did not respond to the aforementioned 
          Administrator's proposed order.  In the above-mentioned order, the 
          Administrator determined that the subject tenant moved from 
          Apartment 1R to Apartment 2L "under duress and strictly for the 
          convenience and financial benefit of the owner"; that "it is 
          determined that the first rent in apartment 2L for subject tenant 
          must remain at $100 per month, the same rent paid by the tenant 
          when he occupied apartment 1R"; that the subject landlord had 
          collected rent in excess of the legal rent, and that the 
          Administrator computed total overcharges in the amount of 
          $27,150.00, including treble damages, from April 1, 1985.

               In the subject landlord's petition, filed under Docket No. 
          FB210189RO, she asserts, among other things, that a proceeding to 












          Docket Nos. FB210189RO and FI210057RO

          establish an apartment's rent is "contrary to law", that she did 
          not receive notice of the then pending proceeding under Docket No. 
          KC000499AD; that the Administrator's order issued under Docket No. 
          CJ210348R "refers to a denial for late enrollment by RSA, but fails 
          to state when or by whom alleged application for late enrollment 
          was made," and that a certified copy of the rent agency's records 
          "disclosed that five apartments had been decontrolled between 
          7/19/84 and 3/12/85."

               To her petition the subject landlord attaches a certified list 
          from the rent agency of the subject housing accommodations rental 
          status as noted in the rent agency's records.  In the list, it is 
          noted that a decontrol report for the subject apartment was filed 
          on March 12, 1985, pursuant to former Section 2(f)(17) of the Rent 
          and Eviction Regulations.

               In the landlord's petition, filed under Docket No. FI210057RO, 
          she alleges, among other things, that the tenant had interposed two 
          counterclaims against the subject landlord in Civil Court 
          concerning the same subject matter; that, based on the above- 
          mentioned, the tenant "had elected his remedies"; that "the 
          administrator of tenant's estate has no standing herein, has no 
          personal knowledge of the facts, and the tenant's estate has 
          sustained no pecuniary damage or loss"; that the Administrator 
          should have conducted a hearing "requiring the presence of the 
          prior owners, in order to properly determine the questions 
          involved" in this proceeding; that when she purchased the subject 
          building the seller represented herself to be a member in good 
          standing of the R.S.A; that, the landlord states, "neither I nor my 
          attorney received the alleged proposed order allegedly issued on 
          July, 10, 1991"; that, as the landlord asserts, she did not have an 
          opportunity to be heard in the proceeding under Docket No. 
          KC000499AD, and that the reference to the Rent Stabilization Law 
          and Code by the Administrator in the order issued under the above- 
          mentioned docket number was not applicable as the purpose of that 
          proceeding was to establish the rent pursuant to the Rent Control 
          laws and regulations.

               In the subject tenant's response, dated November 5, 1991, he 
          asserts, among other things, that the tenant raised his overcharge 
          claim as a counterclaim in the landlord's eviction proceeding in 
          the Civil Court, and that "no determination has ever been made by 
          the Civil Court on the rent regulatory status or rent amount."

               After careful consideration, the Commissioner finds that the 
          landlord's petition for administrative review filed under Docket 
          No. FB210189RO should be denied; and that the landlord's petition 
          for administrative review filed under Docket No. FI210057RO should 
          be granted in part.

               The record reflects that on May 22, 1984, the rent agency 
          mailed a notice to the then landlord of the subject building which 






          Docket Nos. FB210189RO and FI210057RO

          stated that:

               Your application for permission for late enrollment of 
               residential apartments within the Rent Stabilization 
               Association was received and assigned the captioned 
               docket number.

               However, a current review of your file reveals that 
               various requested documents and /or information has not 
               been supplied by you despite timely requests for same by 
               this office.

               Accordingly, permission for late enrollment must be 
               denied due to this aforementioned failure and, 
               accordingly, this building is now deemed to be housing 
               accommodations subject to standard rent control and is 
               being referred for establishment of controlled rents.  
               You will be further advised in that proceeding.

               The rent agency's records do not reflect that the 
          Administrator's determination in the above-mentioned notice was 
          revoked.

               Based on the record, the Commissioner notes that the subject 
          tenant moved within the subject building from Apartment 1R to 
          Apartment 2L subsequent to the issuance of the aforementioned 
          notice which recontrolled the housing accommodations in the subject 
          building.

               The Commissioner points out that it is a long established 
          policy followed by the Division of Housing and Community Renewal 
          (D.H.C.R.) and its predecessor agency in administrating the various 
          statutes providing for the regulation of housing that when a tenant 
          in a rent controlled apartment surrenders that apartment in 
          exchange for another apartment at the request of, or for the 
          convenience of, the landlord, the latter apartment remains subject 
          to rent control until that tenant vacates.

               Based on the record, the Commissioner finds that the subject 
          tenant was asked by the prior landlords to vacate Apartment 1R 
          because they needed that apartment for their relatives; that the 
          subject tenant vacated Apartment 1R and moved into Apartment 2L for 
          the sole benefit and convenience of the prior landlords; that after 
          moving into Apartment 2L the subject tenant's monthly rent was 
          increased from $100.00 to $300.00; that the subject landlord does 
          not show that the above-mentioned increase in the subject tenant's 
          monthly rent was lawful, and that the rent agency did not issue an 
          order granting the prior landlords permission to evict the subject 
          tenant from Apartment 1R.

               Accordingly, the Commissioner finds that the subject apartment 
          (Apartment 2L) remained subject to the Rent Control laws and 












          Docket Nos. FB210189RO and FI210057RO

          regulations during the tenancy of the subject tenant.

               As to the subject landlord's assertion that when she purchased 
          the subject building she was not aware of the fact that the rent 
          agency had recontrolled the housing accommodations in the subject 
          building, the Commissioner finds that that assertion, even if true, 
          does not change the rental status of the subject apartment.  A new 
          landlord fully undertakes the legal obligations of the prior 
          landlords, and a new landlord acquires no greater rights than the 
          prior landlords.

               As to the certified copy of the rent agency's records, 
          submitted by the subject landlord, which listed the subject 
          apartment as having been decontrolled, the Commissioner points out 
          that the above-mentioned records were based on decontrol reports 
          filed with the rent agency by prior landlords of the subject 
          building.

               The Commissioner further points out that a decontrol report is 
          not an order of the rent agency, but it is a document which the 
          landlord files with the rent agency for the purpose of informing 
          the rent agency of a change in the rental status of the apartment, 
          e.g. a change from rent control to decontrol status.

               As a landlord's decontrol report does not have the same effect 
          as an Administrator's order, the Commissioner is of the opinion 
          that when it is determined that the allegations in the landlord's 
          decontrol report are not correct the rent agency, on its own 
          initiative, may void that decontrol report.

               As previously noted, the Commissioner finds that Apartment 2L 
          had been subject to the Rent Control laws and regulations during 
          the subject tenant's tenancy.  Accordingly, the Commissioner finds 
          that any decontrol report of the subject apartment filed by the 
          landlord between the issuance date of the notice which recontrolled 
          the subject housing accommodations and prior to the death of the 
          subject tenant should be void.

               As to the landlord's assertion that a proceeding to establish 
          an apartment's rent is "contrary to law," the Commissioner finds 
          that that assertion is incorrect.  Pursuant to Section 2202.22 of 
          the City Rent and Eviction Regulations, when the legal rent is in 
          dispute or is in doubt the Administrator may initiate a proceeding 
          to establish the legal rent.

               Accordingly, the Commissioner finds that the landlord's 
          petition for administrative review filed under Docket No. 
          FB210189RO should be denied.

               Based on the record in this proceeding, the Commissioner finds 
          that the Administrator's proposed order issued on July 10, 1991 
          under Docket KC000499AD was mailed to the subject landlord's 






          Docket Nos. FB210189RO and FI210057RO

          attorney.

               Even if the subject landlord or her attorney did not receive 
          the above-mentioned proposed order, the Commissioner is of the 
          opinion that the subject landlord had an opportunity to respond to 
          the issues in this proceeding, and that the subject landlord did, 
          in fact, submit several responses which pertain to the issues 
          raised in this proceeding.

               As previously noted, the Administrator mailed to the subject 
          landlord a copy of the tenant's overcharge complaint, and a notice 
          directing the landlord to submit an answer to the aforementioned 
          complaint; that the subject landlord, did in fact, submit an answer 
          to the tenant's complaint; that on December 11, 1990, the 
          Administrator mailed to the parties a notice in which the 
          Administrator proposed to determine the rental status and the legal 
          rent of the subject apartment, and that the Administrator directed 
          the parties to file an answer to the proposed action, and that the 
          subject landlord, did in fact, submit an answer, dated December 31, 
          1990, to the above-mentioned Administrator's notice.

               Accordingly, the Commissioner finds that the subject 
          landlord's assertion that she did not have an opportunity to be 
          heard concerning the issues in this proceeding is without merit.

               As to the subject landlord's assertion that the subject tenant 
          "had elected his remedies" by raising the issue of his overcharge 
          claim as a counterclaim in the proceeding commenced by the subject 
          landlord in Civil Court, the Commissioner finds that that assertion 
          is without merit.

               The Commissioner finds that the parties to this proceeding do 
          not submit a copy of a court order which establishes the subject 
          apartment's rental status or its legal rent.  In the absence of 
          such a order, the Commissioner finds that the rent agency has 
          jurisdiction to determine the legal rent and the rental status of 
          the subject apartment.

               The Commissioner finds that the fact that the Administrator 
          did not conduct a hearing in this proceeding does not warrant a 
          revocation of the Administrator's orders.  Pursuant to the 
          provisions of Section 2207.5(h) of the City Rent and Eviction 
          Regulations, in a proceeding before the Administrator, the 
          Administrator may order a hearing.  Accordingly, the Commissioner 
          finds that ordering a hearing by the Administrator is 
          discretionary, and not mandatory.

               The record reflects that the subject tenant died subsequent to 
          the filing of his overcharge complaint with the rent agency.  The 
          Commissioner finds that the death of the subject tenant does not 
          result in the termination of his overcharge complaint.













          Docket Nos. FB210189RO and FI210057RO

               As to the landlord's assertions pertaining to the estate of 
          the subject tenant, the Commissioner finds that those assertions 
          are without merit.

               As the subject tenant, and not the estate, filed the 
          overcharge complaint and the death of the tenant does not result in 
          the termination of the overcharge complaint, the Commissioner finds 
          that the estate of the subject tenant has a right to maintain the 
          action in this proceeding.

               Accordingly, the Commissioner finds that the substitution of 
          the tenant's estate as a party in this proceeding was proper.

               The record reflects that the subject tenant's monthly rent was 
          $100.00 on the issuance date of the aforementioned notice which 
          recontrolled the housing accommodations in the subject building.

               The record further reflects that the landlord of the subject 
          building did not file an application with the rent agency to 
          increase the maximum  base rent (M.B.R.) of the subject apartment.

               The Commissioner finds that the subject landlord does not show 
          that she was entitled to collect any adjustments in the subject 
          tenant's rent.

               Accordingly, the Commissioner finds that the Administrator's 
          determination that the subject apartment's maximum rent should be 
          $100.00 per month should not be disturbed.  The Commissioner finds 
          that the above-mentioned maximum rent is effective from May 22, 
          1984 through the date of the subject tenant's death.

               As the subject apartment was recontrolled, the Commissioner 
          finds that the Administrator's reference to the Rent Stabilization 
          Law and Code in the order issued under Docket No. KC000499AD was 
          not applicable.  Accordingly, the Commissioner finds that the 
          computation of total overcharges and the imposition of treble 
          damages by the Administrator in accordance with the Rent 
          Stabilization Law and Code was not proper.

               The Commissioner finds that that portion of the 
          Administrator's order issued under Docket No. KC000499AD which 
          refers to the Rent Stabilization Law and Code should be revoked.

               As the subject landlord, in her petition filed under Docket 
          No. FI210057RO, pointed out that the reference to the Rent 
          Stabilization Law and Code in the Administrator's order was 
          inapplicable, the Commissioner finds that the above-mentioned 
          petition for administrative review should be granted in part.

               If the subject tenant's estate is owed money resulting from 
          this order and opinion, the Commissioner notes that the tenant's 
          estate may bring an action against the landlord in a court of 






          Docket Nos. FB210189RO and FI210057RO

          competent jurisdiction, pursuant to Section 2206.8(a)(2) of the 
          City Rent and Eviction Regulations, within one year after the 
          landlord fails to pay any refund which is owed to the tenant's 
          estate.  The one year time period is to the calculated from when 
          the order becomes final.  If there is no Article 78 petition of 
          this order, then the time period is one year after this order 
          becomes final.

               THEREFORE, in accordance with the City Rent and Rehabilitation 
          Law and the Rent and Eviction Regulations, it is

               ORDERED, that the subject landlord's petition, filed under 
          Docket No. FB210189RO, be, and the same hereby is, denied, and that 
          the Administrator's order, issued under Docket No. CJ210348R, be, 
          and the same hereby is, affirmed; and it is

               FURTHER ORDERED, that the subject landlord's petition, filed 
          under Docket No. FI210057RO, be, and the same hereby is, granted in 
          part, and that the Administrator's order, issued under Docket No. 
          KC000499AD, be, and the same hereby is, modified in accordance with 
          this order and opinion.

          ISSUED:



                                                                            
                                             Joseph A. D'Agosta
                                             Deputy Commissioner






    

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