STATE OF NEW YORK
                          OFFICE OF RENT ADMINISTRATION
                                   GERTZ PLAZA
                             92-31 UNION HALL STREET
                             JAMAICA, NEW YORK  11433

     APPEAL OF                                ADMINISTRATIVE APPEAL
                                           :  DOCKET NO. FB810120RO
           JONATHAN WOODNER CO.,              DRO DOCKET NO. YDG810091R 
                              PETITIONER   :  TENANTS: MR. & MRS. FRANK INFANTE


     This Order and Opinion is issued pursuant to an order of the Supreme 
     Court, County of Westchester, Justice Colabella, Index Number 8785/91, 
     dated August 15, 1991, which ordered remit of an Article 78 Proceeding, 
     directing the Division to reconsider its former Order and Opinion issued 
     on May 1, 1991, upon which the court proceeding had been based.

     On February 11, 1991 the above-named petitioner-landlord filed a Petition 
     for Administrative Review against an order issued on January 7, 1991 by 
     the District Rent Administrator, 55 Church Street, White Plains, New York 
     concerning the housing accommodations known as Apartment 4 at 11 Shore 
     View Drive, Yonkers, New York wherein the District Rent Administrator 
     determined that the landlord had overcharged the tenants.

     The issue in this appeal is whether the District Rent Administrator's 
     calculation of the overcharge was correct.

     The proceeding is governed by Section 2506.1 of the Tenant Protection 

     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 originally commenced in July, 1989 by the filing of an 
     overcharge complaint by the tenants, in which they stated that they had 
     commenced occupancy on October 1, 1985 at a rent of $709.50 per month.

     The landlord was served with a copy of the complaint, and was requested to 
     submit rent records to prove the lawfulness of the rents being charged.  
     In answer, the landlord submitted leases from 1983, and invoices and 
     cancelled checks for certain alleged new equipment and improvements in the 
     subject apartment.

     In reply, the tenants alleged that many of the claimed improvements were 
     not professionally done, were not new, or were not done at all.

     In an order issued on January 7, 1991, the Administrator allowed a monthly 
     rent increase of $44.56 for some of the alleged improvements, while 

          DOCKET NO.:  FB810120RO

     disallowing increases for blinds, screens, shower wall tiles, resurfacing 
     of the bathtub, painting, plastering, floor scraping, and toilet seat as 
     ordinary maintenance and repairs.  The Administrator also disallowed rent 
     increases for unspecified bathroom and bedroom fixtures as well as 
     "various bathroom items (i.e. tankball, shower head)" and a dryer wall and 
     hamper wall receptacles.  The Administrator failed to allow any Guidelines 
     increase in the rent over the prior tenant's expired lease.  The order 
     found an overcharge of $8,999.71 as of December 31, 1990.  

     In this petition, the landlord contends in substance that the 
     Administrator's order incorrectly omitted the 10% Guidelines increases for 
     the complaining tenants' vacancy lease, and that some unstated 
     improvements which were disallowed by the Administrator have been allowed 
     in other DHCR orders.  With its petition the landlord has enclosed 
     Administrator's orders for other buildings on Shore View Drive where rent 
     increases were allowed for showerhead, blinds, toilet tank, toilet bowl, 
     wall dryer, and wall hamper. The landlord also enclosed an order which 
     denied without prejudice an increase for screens, due only to the failure 
     to the date of that order to submit substantiating evidence.

     The tenants did not submit an answer to the owner's petition, although 
     given an opportunity to do so.

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

     At the outset the Commissioner notes that the landlord is correct that the 
     Administrator should have allowed a 10% Guidelines increase for the 
     complaining tenants' vacancy lease.  This 10% is computed from the prior 
     rent ($540.33) exclusive of the value of the rent increases allowed for 
     various improvements made during the vacancy period prior to the October 
     1, 1985 commencement date of the tenants' initial lease.  Thus, the 
     Guidelines increase amounts to $54.03 for the 85 - 87 lease.

     Secondly, the Administrator was correct in disallowing rent increases for 
     shower wall tiles, resurfacing the bathtub, painting and plastering, and 
     floor scraping, all these items, as well as the numerous minor fixtures 
     alleged by the owner, are considered mere maintenance and repair. 
     Furthermore, a new toilet independent of a general remodeling and 
     replumbing is an essential service for which a rent increase is not 
     warranted.  Compare Administrative Review Docket Number EL410145RO/ 

     Moreover, the Commissioner notes that the remaining alleged improvements 
     raised by the owner on appeal are supported only by checks and bulk 
     orders/invoices for equipment.  There is no proof in these orders/invoices 
     or checks that any of the items were actually installed in the subject 
     apartment.  The owner has merely added notations to these orders/invoices 
     stating that certain items were so installed.  No internal work orders or 
     other evidence supports the landlord's allegations that the items were 
     actually installed in the subject apartment.

     Nevertheless, in responding on November 9, 1990 to the landlord's 
     submission of these orders/invoices to the Administrator, the tenants did 
     not dispute the installation of venetian blinds and screens or of a dryer 
     wall and a hamper wall receptacle.  Accordingly, the landlord is hereby 
     granted a 1/40th increase for each of these four items:  1/40 x ($230.41 
     + $173.93 + $38.89 +$71.80) = $12.88.

          DOCKET NO.:  FB810120RO

     Thus the tenants' initial rent should have been $540.33 + $54.03 + $12.88 
     + $44.56 (for the improvements allowed by the Administrator) or $651.80.  
     Therefore, the overcharges should have been computed as follows:

       Lease term       Rent charged    Lawful rent   Overcharge with interest
     10/1/85-9/30/87      $709.50         $651.80            $1,511.07
     10/1/87-9/30/89      $744.97         $684.39            $1,586.50
                                          (5% GL)     
     10/1/89-9/30/91      $782.22         $718.61            $1,005.91
                                          (5% GL)     
         (through 12/31/90, the computation date of order)
                                      Excess security          $63.61
                                          Total             $4,167.09

     The landlord is hereby directed to immediately refund the amount $4,167.09 
     to the tenants.  If the landlord fails to do so, the tenants may recover 
     the penalty found herein by deducting it from the rent payable to the 
     landlord at a rate not in excess of 20 percent of the amount of the 
     penalty for any one month's rent.  If no such offset has been made, this 
     order may, upon the expiration of the period in which the landlord may 
     institute a proceeding pursuant to Article 78 of the Civil Practice Law 
     and Rules, be filed and enforced by the tenants in the same manner as a 

     If the owner has already complied with the Administrator's Order and, as 
     a result of the instant determination, there are arrears due to the owner 
     from the tenants, the tenants may pay off the arrears in twenty-four equal 
     monthly installments during the next twenty-four months.  Should the 
     tenants vacate after the issuance of this Order, all arrears are due 

     THEREFORE, in accordance with the Emergency Tenant Protection Act and 
     Regulations, it is 

     ORDERED, that this petition be, and the same hereby is, granted in part 
     and the Rent Administrator's order be, and the same hereby is, modified in 
     accordance with this Order and Opinion to show an overcharge, with 
     interest and excess security, of $4,167.09.

                                               JOSEPH A. D'AGOSTA
                                               Deputy Commissioner     


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