GE410071RO

                                  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. GE410071RO
                                              :  DRO DOCKET NO.ZDH410205R
               THE ARGO CORPORATION              TENANT: J. P. KAHN

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


               On May 14, 1992, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on May 1, 
          1992, by the Rent Administrator, 92-31 Union Hall Street, Jamaica, 
          New York, concerning the housing accommodations known as 562 West 
          End Avenue, New York, New York, Apartment No. 3A 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 by the filing in 
          August, 1989, of a rent overcharge complaint in which the tenant 
          stated in substance that the April 1, 1989 legal registered rent for 
          the subject apartment was listed as $531.98 whereas he was actually 
          paying $545.37.

               In response to the tenant's complaint, the owner submitted a 
          rental history from October 4, 1980 and stated that such history 
          established that the rent being charged was accurate.  The owner 
          further stated that the 1989 apartment registration showing a 
          registered rent of $531.98 was due to a typing error.

               The owner was directed by the DHCR to submit proof of service 
          of the April 1, 1984 apartment registration (RR-1 form) on the 
          tenant of record on that date and to submit a rental history from 
          April 1, 1980.  In response, the owner herein stated that it had 
          recently been appointed the managing agent of the subject premises 
          as the result of a foreclosure proceeding and subsequent appointment 
          of a court appointed receiver; that information provided it by the 
          receiver has been lacking in scope; and that an examination of DHCR 
          records does not disclose that a 1984 apartment registration for the 
          subject apartment was filed with the DHCR.









          GE410071RO



               In Order Number ZDH410205R, the Rent Administrator determined 
          that, due to the owner's failure to submit a rental history from 
          April 1, 1980, DHCR default procedures would be used to establish 
          the lawful stabilization rent, and that due to the owner's failure 
          to register the subject apartment in the years 1984 and 1991, the 
          rent would be frozen as of April 1, 1984.  Based on the foregoing, 
          the Rent Administrator determined that a rent overcharge of 
          $22,372.76 had occurred from February 1, 1986 through April 30, 1992 
          including treble damages, interest, and excess security.

               In this petition, the owner alleges in substance that it has 
          now obtained proof of service of the 1984 apartment registration 
          form on the tenant then in occupancy; that it did register the 
          subject apartment in 1991; and that it does have a rental history 
          from April 1, 1980 which discloses that no rent overcharge occurred.  
          In support of such contention, the owner submitted proof that in May 
          1984, the Rent Stabilization Association served the tenant then in 
          occupancy with a copy of the RR-1 form; proof of 1991 registration 
          with the DHCR and the tenant in 1991; and copies of all leases for 
          the subject apartment from October 4, 1977.

               In answer to the owner's petition, the tenant stated in 
          substance that the legal registered rent in 1989 was $531.98 and the 
          owner was charging a rent of $545.37.  Subsequently, the tenant 
          requested expedited processing of the owner's petition due to the 
          fact that there was a receivership and stated that he was no longer 
          in occupancy at the subject apartment.

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

               In the instant case, the record shows that the subject premises 
          went through a foreclosure proceeding and subsequent appointment of 
          a court appointed receiver.  Based on the difficulty in obtaining a 
          complete rental history due to the foregoing, the Commissioner deems 
          it appropriate to accept the owner's submissions of the rental 
          history and registration data submitted for the first time on 
          appeal.  An examination of the rental history from April 1, 1980 
          discloses that no rent overcharge in fact occurred:  The rental 
          history is as follows:  April 1, 1980 rent of $350.00 increased by 
          17% to $409.50 pursuant to Guideline 12 for a three year renewal 
          lease effective October 4, 1980; then increased by 7% to $438.17 
          pursuant to Guideline 15 for a two year renewal lease effective 
          October 4, 1983; then increased by 14% to $499.51 pursuant to 
          Guideline 17 for the two year vacancy lease of the tenant herein 
          effective February 1, 1986; then increased by 3% to $514.50 pursuant 
          to Guideline 19 for a one year renewal lease effective February 1, 
          1988; then increased by 6% to $545.37 pursuant to Guideline 20 for 
          a one year renewal lease effective February 1, 1989; then increased 
          by 5 1/2% to $575.37 pursuant to Guideline 21 for a one year renewal 
          lease effective February 1, 1990; then increased by 7% to $615.65 
          pursuant to Guideline 22 for a two year renewal lease effective 






          GE410071RO

          February 1, 1991.  The owner in fact charged rents at the above 
          amounts and the listing in the 1989 annual rent registration form 
          was a typographical error inconsistent with the lease history and 
          will not be followed by the DHCR.

               With regard to the freezing of the rent due to the alleged 
          failure to register in 1984 and 1991, DHCR rent records disclose 
          that the owner in fact registered in 1991.  As to 1984, the owner 
          has submitted sufficient evidence to show that the tenant in 
          occupancy in 1984 was properly served with the 1984 RR-1 form in 
          1984.  Further DHCR records disclose that the owner registered with 
          the DHCR for all years since 1984 and that the rent has been 
          increased since April 1, 1980 only in accordance with standard 
          guideline allowances.   Accordingly based on the totality of the 
          evidence rule as enunciated in Policy Statement 92-3, the owner 
          herein is deemed to have served the 1984 registration on the DHCR.  
          Accordingly, the Rent Administrator's order finding a rent 
          overcharge based on the failure to register in 1984 and 1991 and the 
          failure to submit a complete rental history must be revoked.

               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, and, that the order of the Rent 
          Administrator be, and the same hereby is, revoked, and it is found 
          that no rent overcharge occurred.

          ISSUED



                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner




                     

























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