FE410298RO

                                  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.FE410298RO
                                              :  DRO DOCKET NO.ZCF410041R
               COLUMBUS STUDIOS, INC.            TENANT: RICHARD B. BYRON

                                PETITIONER    : 
          ------------------------------------X                             
           ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN 
          PART


               On May 28, 1991, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on May 3, 
          1991, by the Rent Administrator, 92-31 Union Hall Street, Jamaica, 
          New York, concerning the housing accommodations known as 100 West 
          83rd Street, New York, New York, Apartment No. 1C (rooming house 
          accommodation), 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 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 in June, 1988 by the 
          tenant's filing of a rent overcharge complaint in which the tenant 
          stated in substance that he first moved to the subject apartment 
          (room in rooming house accommodations) on December 12, 1986 at a 
          rental of $325.00 per month without a lease and believed that he was 
          being overcharged.

               The owner was served with a copy of the tenant's complaint and 
          directed to submit a complete rental history from April 1, 1980 
          including documentation for any rent adjustments that were entered 
          for the subject apartment.  The owner submitted copies of annual 
          rent registrations for the subject apartment from 1985 showing the 
          rent charged to be $325.00.  The owner also stated in substance in 
          an answer dated April 9, 1991, that a prior tenant vacated the 
          subject apartment in October of 1984 and that the owner then 
          completed major work in the room as follows: clean room out; 
          plastering work done; painting of the room; half of the floor was 
          rebuilt; plumbing; and four pieces of glass were replaced in the 
          windows.  The owner further stated that all of this work was done by 
          the superintendent.  No documentary proof of this work was submitted.









          FE410298RO



               In Order Number ZCF410041R, the Rent Administrator accepted the 
          April 1, 1984 registered rent of $164.40 as the initial legal 
          registered rent, did not allow any rent increases for the alleged 
          improvements, and did not allow any guideline increases for the 
          period of occupancy for the tenant herein from December 12, 1986 
          through January 26, 1991 and determined that the tenant had been 
          overcharged during the aforementioned period in the amount of 
          $23,608.20 including treble damages.

               In this petition, the owner alleges in substance that it should 
          have been allowed a rent increase for the improvements made prior to 
          occupancy by the tenant herein; that such improvements included but 
          are not limited to, replacing the old floor with a new one; 
          replacing walls and ceilings with new ones; and replacing old pipes 
          with new ones throughout the room.  The owner further alleges that 
          the above work was done by employees of the owner and therefore the 
          owner has no paid bills or cancelled checks as proof of the work 
          done; that the owner is entitled to guideline increases for the 
          period of five years listed in the Rent Administrator's order; that 
          the rent charged of $325.00 was fair and equitable and that in any 
          event any overcharges were not willful and therefore the imposition 
          of treble damages was not warranted.  

               In answer to the owner's petition, the tenant stated inter alia 
          that no improvements were in fact made prior to his occupancy except 
          for a linoleum carpet on the floor; that the old wood floor was 
          never replaced; and that the ceiling is falling down.

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

               An examination of the record in this case discloses that the 
          owner has made inconsistent statements in the proceeding before the 
          Rent Administrator and on appeal as to what work was allegedly done 
          in the subject apartment prior to occupancy by the tenant herein.  
          Moreover, the owner has never submitted documentary proof of what 
          work was done (even if labor was supplied by the superintendent, the 
          cost of the alleged new wood floor, ceiling, etc. should have been 
          documented) nor even stated what the work cost.  In addition, the 
          tenant denies that most of the so called improvements were in fact 
          made.  Further, the Commissioner characterizes the work claimed in 
          the proceeding before the Rent Administrator as clearly maintenance 
          and repair work for which no rent increase is warranted.  
          Accordingly, the Rent Administrator correctly did not allow a rent 
          increase for any of the alleged improvements.

               An examination of the record discloses that the Rent 
          Administrator did not grant the owner the appropriate yearly hotel 
          guideline rent increases to which it was entitled.  Taking this 
          factor into account, the Commissioner has recalculated the lawful 
          stabilization rents and the amount of the rent overcharge allowing 
          such guideline increases.  The lawful stabilization rents and amount 






          FE410298RO

          of rent overcharge are set forth on the amended rent calculation 
          chart attached hereto and made a part hereof.  DHCR rent records 
          indicate that the owner registered the April 1, 1984 rent for the 
          subject apartment at $164.40 and thus that amount has been used as 
          the initial legal regulated rent. 

               With regard to the imposition of treble damages, the owner has 
          not established that the overcharge was not willful.  Rather the 
          owner has submitted inconsistent statements regarding alleged 
          improvements made in the subject apartment and has not substantiated 
          that any qualifying improvements were in fact made.  Therefore the 
          imposition of treble damages was warranted.

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

               The Commissioner has determined in this Order and Opinion that 
          the owner collected overcharges of $22,490.22.  This Order may, upon 
          expiration of the period for seeking review of this Order and 
          Opinion pursuant to Article Seventy-eight of the Civil Practice Law 
          and Rules, be filed and enforced as a judgment or not in excess of 
          twenty percent per month of the overcharge may be offset against any 
          rent thereafter due the owner.  Where the tenant credits the 
          overcharge, the tenant may add to the overcharge, or where the 
          tenant files this Order as a judgment, the County Clerk may add to 
          the overcharge, interest at the rate payable on a judgment pursuant 
          to section 5004 of the Civil Practice Law and Rules from the 
          issuance date of the Rent Administrator's Order to the issuance date 
          of the Commissioner's Order.

               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 in part, and, that the order of the Rent 
          Administrator 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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