GA 210009 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. GA 210009 RO

                                          :  DISTRICT RENT OFFICE
           Yvonne McLeod - owner,            DOCKET NO. ZDF 210296 R
                    and                     
           Andrea Lingstuyl -                TENANTS: Johnnie Miller/         
                managing agent,                       William Campbell

                               PETITIONER : 
      ------------------------------------X                             

           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


      On January 7, 1992, the above-named petitioner-owner and managing agent 
      filed a Petition for Administrative Review against an order issued on   
      December 5, 1991, by the Rent Administrator, 92-31 Union Hall Street, 
      Jamaica, New York, concerning the housing accommodations known as       
      251 Lexington Avenue, Brooklyn, New York, Apartment No. 3R, wherein the 
      Rent Administrator determined that the owner had overcharged the tenant 
      and froze the collectible rent due to the owner's failure to register 
      the apartment.

      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 by the filing of a rent 
      overcharge complaint by the tenants in June 1989 in which it was stated 
      that the apartment was not properly registered during the occupancy of 
      the prior tenant who paid a much lower rent.

      The owner and manager each submitted copies purportedly of the initial 
      apartment registration (RR1) and a renewal lease commencing April 1, 
      1985 for the prior tenant.  These copies contained contradictory rental 
      data.  The manager's submitted lease and RR1 stated the initial rent as 
      $370.00 whereas the owner's submitted RR1 indicated a April 1, 1984 rent 
      of $200.00 and a renewal lease rent of $230.00.  In addition, the 
      owner's submission of the RR1 was accompanied by an affidavit of service 
      by the RSA with the apartment registration list.


      The owner was directed to provide an explanation for the discrepancies 
      and also to submit any bills for improvements, a complete rental history 







          GA 210009 RO

      from April 1, 1984 and proof of registration with DHCR for 1984 and 
      1985.  Neither the owner nor the manager complied with the Rent 
      Administrator's directive.

      In Order Number ZDF 210296 R, the Rent Administrator established the 
      lawful stabilized rent as $200.00 effective April 1, 1985, determined 
      that the tenants had been overcharged and directed a refund to the 
      tenants of $44,085.63, including interest prior to May 14, 1987 and 
      treble damages on overcharges thereafter, and froze the rent at $200.00 
      due to the owner's failure to register the subject apartment in 1984 and 
      1985.

      In this petition, the owner contends in substance that the order should 
      be reversed because the Rent Administrator failed to "consider the 
      equities"; that the rent should not have been frozen at $200.00 due to 
      non-registration because it was registered from 1984 through 1991; and 
      that the owner wants to see the "DRO record" and supplement its 
      petition.  During the pendency of the appeal, the tenants vacated 
      without a forwarding address.

      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(a) of the RSC provides, in pertinent part, that the 
      penalty for failure to initially 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 the date the housing accommodation became 
      subject to the registration requirements and that the late filing of the 
      registration shall result in the elimination prospectively of such 
      penalty.

      An examination of the record in this case discloses that the subject 
      apartment was not registered with DHCR for 1984; it that a registration 
      was found for 1985 under a different apartment designation (3 right) at 
      a rent of $230.00; that although given an opportunity, the owner failed 
      to submit either below or on appeal proof that it filed a 1984 initial 
      registration with DHCR or substantiate that a rent of $370.00 was paid 
      by the prior tenant.

      Due to the contradictory submissions sent by the manager and owner, the 
      "Notice of Intention to Impose Treble Damages" dated September 18, 1991 
      (referred to by the petitioner) cited a defaulted initial rent based on 
      the $370.00 rent contained in the manager's submission.  The subsequent 
      submission by the owner of the RR1 citing the $200.00 rent of April 1, 
      1984, accompanied by the RSA mailing documents was considered more 
      credible by the Rent Administrator and utilized as the base rent in 
      effect on April 1,1984 and the rent of $200.00 was frozen pursuant to 
      Section 2528.4(a).



      The Commissioner rejects the owner's contention that it had proven 
      registration with DHCR by its submission of the RSA mailing documents 
      and affidavits.  These documents serve only to attest to service of the 
      RR1 on the tenant and not the filing of the registration forms with DHCR 


          GA 210009 RO

      which remains the owner's obligation.

      Further, DHCR records indicate that to date the owner has failed to file 
      a request for access to review the case files under the Freedom of 
      Information Law (F.O.I.L.) or to supplement its petition.  Therefore, 
      the Commissioner rejects that portion of the owner's appeal as without 
      merit.

      Accordingly, the Rent Administrator's order was warranted.

      Because this determination concerns lawful rents only through May 14, 
      1991, the owner is cautioned to adjust subsequent rents to an amount no 
      greater than that determined by the Rent Administrator's order plus any 
      lawful increases, and to register any adjusted rents with this order and 
      opinion being given as the explanation for the adjustment.

      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.

      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.

      A copy of this order is being served on the current occupant of the 
      subject apartment.


      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner




                 






















          GA 210009 RO
















    

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