DOCKET NO.:  GA420173RO
                                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   :   S.J.R. NO. 7244
      APPEAL OF                                 ADMINISTRATIVE REVIEW
                                            :   DOCKET NO. GA420173RO
               ROBERT PULLMAN,                  DISTRICT RENT ADMINISTRATOR'S
                                            :   DOCKET NO. EI420033RP
                             PETITIONER                     
                                            :
      --------------------------------------X            


        ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART

      On January 8, 1992, the above-named landlord filed a petition for 
      administrative review of an order issued on December 6, 1991 by a Rent 
      Administrator concerning the housing accommodation known as Apartment 1A, 37 
      East 30th Street, New York, New York.

      Subsequently, the subject landlord filed a petition in the Supreme Court of 
      the State of New York, pursuant to Article 78 of the Civil Practice Law and 
      Rules, in the nature of an application for a writ of mandamus, requesting 
      that a determination of the petitioner's administrative appeal be issued.

      After considering the Article 78 petition, the Court issued an order 
      remitting the proceedings to the New York State Division of Housing and 
      Community Renewal (D.H.C.R.) for further consideration.

      The Commissioner has reviewed all the evidence in the record and has 
      considered that portion of the record relevant to the issues raised by the 
      petition for administrative review.

      On February 17, 1988, the subject tenant filed with the D.H.C.R. an 
      overcharge complaint.  In her complaint, the subject tenant asserted that 
      the landlord is collecting rent in excess of the subject apartment's maximum 
      rent.

      In his response, dated September 14, 1988, the subject landlord asserted, 
      among other things, that in 1922 the subject tenant rented professional 
      space in the subject building consisting of three rooms and a bathroom; that 
      in approximately 1945 the subject tenant rented an apartment which was 
      registered as apartment 1A, which adjoined the professional space; that 
      subsequently, the tenant began using the professional space as an extension 
      of her apartment; that the rent collected by the subject landlord included 
      apartment 1A and the former professional space, and that the tenant has not 
      been overcharged because the rent for the professional space was calculated 
      by the landlord as if it was rent controlled.

      On October 12, 1988, the Administrator issued an order under Docket No. 
      CB420558R, which established maximum rents for the subject apartment.







          DOCKET NO.:  GA420173RO


      On November 15, 1988, the subject landlord filed a petition for 
      administrative review of the above-mentioned order.  In the above-mentioned 
      petition, the subject landlord asserted, among other things, that in 
      calculating the subject apartment's maximum rents the Administrator did not 
      include the professional space first utilized by the subject tenant in 1922.

      The Commissioner issued an order on June 29, 1990 under Docket No. 
      CK420027RO.  The above-mentioned order determined, based upon the rent 
      agency's records, that the subject apartment was registered with the rent 
      agency as containing five rooms; that the tenant has been using the business 
      portion of the subject apartment for residential purposes in conjunction 
      with the rest of the subject apartment; that the entire subject apartment, 
      including the business and residential portion, is subject to rent control, 
      and that:  "Pursuant to Section 2202.22 this proceeding is being remanded to 
      the Rent Administrator to redetermine the maximum collectible rent rates for 
      the subject apartment to include an allowance for the 'business' portion of 
      the subject apartment in such redetermination." 

      Pursuant to the above-mentioned Commissioner's order, the Administrator 
      issued the order under review herein on December 6, 1991 under Docket No. 
      EI420033RP.  The Administrator's order determined that the subject 
      apartment's maximum rent is $326.50 per month effective August 1, 1970; that 
      the rent consisted of $126.50 per month for the residential portion and 
      $200.00 per month for the professional portion; that, based upon the 
      issuance by the rent agency of subsequent orders which granted the landlord 
      maximum base rent (M.B.R.) increases, the subject apartment's maximum rent 
      had been increased to $723.40 per month effective January 1, 1991, and that 
      the above-mentioned rents do not include the $20.36 per month fuel cost 
      adjustment for the subject apartment's eight rooms.

      In the landlord's petition he asserts, among other things, that in the order 
      under review herein the Administrator undercalculated the subject 
      apartment's maximum rent, and that the subject tenant must commence an 
      overcharge complaint within "two years from the date of occurrence of an 
      overcharge." 

      After careful consideration, the Commissioner finds that the landlord's 
      petition should be granted in part.

      The record reflects that the subject apartment was registered with the 
      maximum base rent (M.B.R.) system as containing five rooms, and that the 
      rent agency's initial calculation of the subject apartment's M.B.R.  was 
      $245.97 per month effective January 1, 1972.

      As the aforementioned Commissioner's order issued on June 29, 1990 under 
      Docket No. CK420027RO determined that both the residential and business 
      portion of the subject apartment were rent controlled, the Commissioner 
      points out that the Administrator in the proceeding under Docket No. 
      EI420033RP recalculated the subject apartment's maximum rent and its M.B.R. 
      based upon the subject apartment containing eight rooms (the residential 
      portion contained five rooms and the business portion contained three 
      rooms). 


      The Commissioner notes that in the order under review herein, the 
      Administrator established that the subject apartment's maximum rent 



          DOCKET NO.:  GA420173RO

      effective August 1, 1970 was $326.50 per month.

      The record reflects that the rent agency recalculated the subject 
      apartment's initial M.B.R. to include both the residential and business 
      portions of the subject apartment.  The Commissioner notes that the subject 
      apartment's initial M.B.R. was recalculated to be $422.36 per month 
      effective January 1, 1972.

      The rent agency's records reflect that the rent agency granted the landlord 
      M.B.R. increases for the period from 1974 through 1979.

      Based upon the biennial increases to the subject apartment's M.B.R., as 
      calculated pursuant to the respective orders of eligibility, the 
      Commissioner notes that the subject apartment's M.B.R. effective January 1, 
      1978 was increased to $609.39 per month.

      Based upon the 7.5% annual increase to the subject apartment's maximum rent, 
      as provided for in the respective orders of eligibility, the Commissioner 
      notes that the subject apartment's maximum rent effective January 1, 1978 
      was $541.68 per month.

      The record in this proceeding reflects that in calculating the subject 
      apartment's maximum rent effective January 1979, the Administrator did not 
      increase the subject apartment's maximum rent effective on December 31 1978 
      by 7.5%.

      The Commissioner finds the subject apartment's maximum rent effective 
      January 1, 1979 should be increased to $582.31 per month.

      In the order issued on January 24, 1980 under Docket No. 4M4400, the 
      Commissioner notes that the rent agency denied the landlord M.B.R. increases 
      for the 1980-1981 period.

      In the order issued on February 18, 1982 under Docket No. 5M2721, the 
      Commissioner notes that the rent agency granted the landlord M.B.R. 
      increases for the 1982-1983 period effective January 1, 1982.

      In calculating the 1982-1983 M.B.R. when the last M.B.R. increase was 
      granted in 1978-1979, as in this proceeding, the Commissioner notes that the 
      1978-1979 M.B.R. should be increased by 22.1%, pursuant to the applicable 
      M.B.R. factor promulgated by the rent agency.

      As the subject apartment's 1978-1979 M.B.R. was $609.39, the Commissioner 
      finds that the subject apartment's 1982-1983 M.B.R. should be increased to 
      $744.07 per month ($609.39 X 22.1%).

      The Commissioner finds that the subject apartment's maximum rent effective 
      January 1, 1982 should be $625.98 per month ($582.31 X 7.5%), and that the 
      subject apartment's maximum rent effective January 1, 1983 should be $672.93 
      per month ($625.98 X 7.5%).


      In the order issued on August 9, 1985 under Docket No. 6M2942, the 
      Commissioner notes that the rent agency granted the landlord M.B.R. 
      increases for the 1984-1985 period effective July 1, 1984.

      Pursuant to the above-mentioned order, the Commissioner notes that the 







          DOCKET NO.:  GA420173RO

      subject apartment's 1982-1983 M.B.R. should be increased by 7.5% in 
      calculating the 1984-1985 M.B.R.  The Commissioner finds that the subject 
      apartment's 1984-1985 M.B.R. should be increased to $799.88 per month 
      ($744.07 X 7.5%) effective July 1, 1984.

      Pursuant to the aforementioned order, the Commissioner notes that the 
      subject apartment's maximum rent effective July 1, 1984 should be $723.40 
      per month ($672.93 X 7.5%), and that the subject apartment's maximum rent 
      effective January 1, 1985 should be $777.66 per month ($723.40 X 7.5%).

      In the order issued on September 30, 1988 under Docket No. 7M02468M 
      (7MI02468M), the Commissioner notes that the rent agency granted the 
      landlord M.B.R. increases for the 1986-1987 period effective January 1, 
      1986.

      Pursuant to the aforementioned order, the Commissioner notes that the 1984- 
      1985 M.B.R. should be increased by 11.5% in calculating the 1986-1987 M.B.R.  
      The Commissioner finds that the subject apartment's 1986-1987 M.B.R. should 
      be increased to $891.87 per month effective January 1, 1986 ($799.88 X 
      11.5%).

      Pursuant to the aforementioned order, the Commissioner finds that the 
      subject apartment's maximum rent effective January 1, 1986 should be $835.98 
      per month ($777.66 X 7.5%), and that the subject apartment's maximum rent 
      effective January 1, 1987 should be $891.87 per month ($835.98 X 7.5% equals 
      an amount in excess of the subject apartment's 1986-1987 M.B.R., and 
      therefore the subject apartment's maximum rent effective January 1, 1987 
      should equal the subject apartment's 1986-1987 M.B.R.).

      The Commissioner notes that the rent agency issued an order on July 6, 1987 
      under Docket No. BC420376S which reduced the subject apartment's maximum 
      rent by $11.00 per month based upon the Administrator's finding of a 
      diminution of services in the subject apartment.

      Accordingly, the Commissioner finds that the subject apartment's maximum 
      rent effective August 1, 1987 should be $880.87 per month ($891.87 - 11.00).

      The record reflects that the subject landlord did not file a petition for 
      administrative review of the aforementioned order issued under Docket No. 
      BC420376S.  The record further reflects that the subject landlord did not 
      file an application to restore the subject apartment's maximum rent.

      Accordingly, the Commissioner finds that the Administrator's order issued on 
      July 6, 1987 under Docket No. BC420376S is a final determination of the rent 
      agency; and that the above-mentioned order reducing the subject apartment's 
      maximum rent, based upon the Administrator's finding of a diminution in 
      services, is currently in effect.




          DOCKET NO.:  GA420173RO


      Although subsequent M.B.R. orders of eligibility issued by the rent agency 
      are still in effect, pursuant to the provisions of Policy Statement 90-1, 
      the Commissioner finds that the subject landlord is barred from collecting 
      any subsequent maximum rent increases until the rent agency issues an order 
      restoring the rent to the level in effect prior to the issuance of the 
      aforementioned order issued under Docket No. BC420376S.

      Based upon all of the above-mentioned facts, the Commissioner finds that the 
      Administrator's order under review herein should be modified to reflect the 
      fact that the subject apartment's maximum rent effective January 1, 1991 
      should be increased to $880.87 per month.

      As to the landlord's assertion that pursuant to the applicable rent 
      regulations the subject tenant must commence an overcharge complaint within 
      "two years from the date of occurrence of an overcharge," the Commissioner 
      finds that that assertion does not bar the rent agency from calculating and 
      updating the subject apartment's M.B.R. and its maximum rent, in this 
      proceeding, from its inception into the M.B.R. system through the effective 
      date of the Administrator's order under review herein.

      If the subject tenant or the subject tenant's estate is owed money resulting 
      from this order and opinion, the Commissioner notes that the subject tenant 
      or the tenant's estate may bring an action against the landlord in any court 
      of competent jurisdiction, pursuant to Section 2206.8(a)(2) of the City Rent 
      and Eviction Regulations, within one year after the landlord fails to pay 
      any refund which is owed to the tenant or the tenant's estate.  The one-year 
      time period is to be calculated from when the order becomes final.  If there 
      is no Article 78 petition of this order, then the time period is one year 
      after this order becomes final.

      The Commissioner finds that if there are any retroactive rents due to the 
      landlord as a result of this order increasing the subject apartment's 
      maximum rent effective January 1, 1991, such retroactive rents are due 
      immediately.

      The Commissioner points out that the rents noted in this order and opinion 
      do not include fuel cost adjustments the subject landlord may be entitled to 
      collect.

      THEREFORE, in accordance with the City Rent and Rehabilitation Law and the 
      Rent and Eviction Regulations, it is

      ORDERED, that the landlord's petition be, and the same is, granted in part, 
      and that the Administrator's order be, and the same hereby is, modified in 
      accordance with this order and opinion; and it is  

      FURTHER ORDERED, that the subject tenant's maximum rent effective January 1, 
      1991 shall be $880.97.

      ISSUED:

                                                                                
                                                      JOSEPH A. D'AGOSTA
                                                      Deputy Commissioner 




    

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