GA 210036 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 210036 RO

                                                DRO DOCKET NO.: ZDL 210382 R
                   ALPHANSO CAMPBELL
                   LINDEN ASSOCIATES,           TENANT: LURNA BARNES          
                     

                                   PETITIONER    
          ------------------------------------X                             

             ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


          On January 15, 1992, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on      
          January 7, 1992, by the Rent Administrator, 92-31 Union Hall 
          Street, Jamaica, New York, concerning the housing accommodations 
          known as 353 Linden Boulevard Brooklyn, New York, Apartment No.
          1B, 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 of a rent 
          overcharge complaint by the tenant in December 1989. 

          The owner was directed to provide proof that the subject apartment 
          was registered with DHCR in 1984 and that the Rent Stabilized 
          tenant in occupancy on April 1, 1984 was served a copy of the 
          initial apartment registration (RR1 form).  The owner was advised 
          that failure to comply may result in a default procedure to 
          establish the tenant's initial rent and the imposition of treble 
          damages.  The owner was further advised to submit a complete rent 
          history from April 1, 1980.

          In response to the tenant's complaint, the owner submitted a copy 
          of the Landlords' Report of Statutory Decontrol (R42) indicating a 
          September 1978 decontrol date; a lease in effect from October 1, 
          1982 through September 30, 1984 for a prior tenant at a rental of 
          $306.00 plus an affidavit from the Rent Stabilization Association 
          along with an apartment print-out and postal documents indicating 
          mailing of the 1986 annual registrations.








          GA 210036 RO

          In Order Number ZDL 210382 R, the Rent Administrator determined 
          that due to the owner's failure to submit a complete rental 
          history, the owner had collected a rent overcharge of $16,364.12 
          including treble damages on that portion of the overcharge 
          occurring after January 1, 1988 and interest on the portion from 
          March 11, 1987 through December 30, 1987.  In addition, the rent 
          was frozen at the default rent of $429.18 from March 11, 1987 due 
          to the owner's failure to properly register the subject apartment 
          in 1984 and 1985.

          In this petition, the owner contends in substance that the order 
          should be reversed because the tenant had taken initial occupancy 
          in March 1989 and not March 1987 as cited in the order; the subject 
          building was registered in 1984 and 1985; renovations in the amount 
          of $4,370.00 made to the subject apartment in March 1987 were not 
          considered by the Rent Administrator; the owner was just notified 
          of the proceeding in 1991 and therefore was not required to produce 
          any records in excess of 4 years prior to 1991 and that the tenant 
          has paid $500.00 in rent and not $545.00 for the past year and 
          credit should be given for arrears.

          Along with the petition, the owner submitted various bills dated 
          in May 1987, November 1987, July 1988 and October 1989; renewal 
          leases in effect from January 1, 1987 through February 28, 1991 and 
          the 1984 and 1985 RSA affidavit of service of the apartment 
          registration on the tenants listed on the Apartment Registration 
          list with mailing documentation.

          In answer to the owner's petition, the tenant stated in substance 
          that she had proven by the submission of rent receipts to the Rent 
          Administrator that her occupancy commenced in March 1987 and that 
          no new equipment or renovations were done as the owner alleges.

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

          An examination of the record in this case discloses that, to date, 
          neither the subject apartment or building are registered with DHCR 
          for 1984 or 1985.  

          The proof submitted by the owner of the RSA mailing does not prove 
          service on DHCR but only on the tenant.  Moreover, no copy of the 
          actual initial apartment registration was included with the proofs 
          of mailing.

          Further, the owner's contention that the tenant took initial 
          occupancy in March 1989 rather than March 1987 is not supported by 
          the evidence including the 1987 rent receipts submitted by the 
          tenant nor the lease submitted by the owner purported to be the 
          tenant's initial lease in March 1989 since that lease is a renewal 
          lease and not a vacancy lease.

          The Commissioner rejects the owner's contention that it was 
          required to produce rental records only four years prior to 1991 as 
          without merit.

          Section 2526.1 of the RSC limits the submission of records to four 
          years prior to the filing of the complaint.  Moreover, the owner's 


          GA 210036 RO

          failure to substantiate the filing of the initial registration 
          permits the Rent Administrator to request rental history back to 
          the base date of April 1, 1980 in order to establish the initial 
          legal registered rent.

          Further, an examination of the records in this case discloses that 
          in the proceeding before the Rent Administrator, the owner did not 
          submit the bills for new equipment or RSA proofs of service 
          although afforded an opportunity to do so and has not submitted a 
          reasonable excuse for its failure to do so.  Since this is not a de 
          novo proceeding the owner's contention that it properly served the 
          tenants with the registered rents as required and that increases 
          for new equipment should be added to the rent cannot be 
          considered for the first time on appeal.

          Accordingly, the Rent Administrator's order was warranted.

          Because this determination concerns lawful rents only through      
          January 31, 1992, 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 or not in excess of twenty percent per month 
          thereof may be offset against any rent thereafter due the owner.

          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.



          ISSUED



                                                                           
                                          JOSEPH A. D'AGOSTA
                                          Acting Deputy Commissioner







    

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