GB610289RO


                                  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. GB610289RO
                                              :  DRO DOCKET NO. DJ610301R
               Gionta Realty Corp.,                     
                                                 TENANT: Mike Marquez
                                PETITIONER    : 
          ------------------------------------X                             
                                           
               ORDER AND OPINION REMANDING PROCEEDING TO THE RENT
                                   ADMINISTRATOR


          On February 13, 1992, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on 
          January 8, 1992, by the Rent Administrator, 92-31 Union Hall Street, 
          Jamaica, New York, concerning the housing accommodations known as 
          745 Nereid Avenue, Bronx, New York, Apartment No. 4B, 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 on October 20, 1989. The 
          complaint stated that the tenant took occupancy on March 31, 1983 
          pursuant to a one year lease commencing on March 31, 1983 and 
          terminating on March 31, 1984 at a rent of $250.00 per month. The 
          complaint then stated that, after four years, the rent was increased 
          to $280.00 and then, commencing in April, 1989, to $348.42. A copy 
          of the one year lease commencing on April 1, 1989, stating a monthly 
          rent of $348.42, was included with the complaint.

          The owner was served with a copy of the complaint and was directed 
          to submit a complete rent history from the base date, including 
          copies of all leases. 

          In response to the complaint, the owner categorically denied that 
          there was any overcharge, and submitted a rent calculations chart 
          showing how all rent increases were determined. The chart listed an 
          initial legal registered rent of $286.00 on April 1, 1984, which 
          amount was the same as on the initial registration. However, the 
          owner submitted no lease for any period which was included in the 







          GB610289RO


          rent chart.

          In an order issued on January 8, 1992, the Rent Administrator 
          determined that the tenant had been overcharged in the amount of 
          $20,124.59, including treble damages, interest and excess security. 
          The order stated that the owner filed the initial registration, 
          which listed a rent of $250.00, but then failed to file annual 
          registrations for all subsequent years except 1989. As a result, the 
          collectible rent was frozen at $250.00 per month.

          In its petition, the owner disputes the Administrator's findings on 
          the amount of rent charged the tenant and the failure to file 
          registration statements. The owner states that that the legal 
          registered rent on April 1, 1988 was $348.60, but that only $286.00 
          was collected. Therefore, the tenant was undercharged. In addition, 
          the owner encloses copies of the initial and annual registration 
          statements, although several are poorly photocopied and illegible. 
          The initial registration statement and the 1985 and 1986 
          registration statements submitted by the owner are date-stamped 
          received by the DHCR in September, 1991. The 1987, 1988, 1990 and 
          1991 registration forms do not have legible date stamps.  

          The Commissioner is of the opinion that the proceeding should be 
          remanded to the Rent Administator for a new determination.

          From an examination of the record and DHCR registration records, it 
          appears that the Administrator's finding of an initial registered 
          rent of $250.00 is incorrect. The owner's claim that the initial 
          registered rent was $286.00 per month is listed in the DHCR's 
          registration records and is documented by a lease submitted with the 
          petition which was not submitted below. The tenant in one of his 
          complaint forms indicates that the rent on April 1, 1984 was $280.00 
          per month. Furthermore, the finding that the owner failed to file 
          annual registrations, except for the year 1989, is also contradicted 
          by filing records; all years are currently on file, but, commencing 
          in 1986, which was the first year for which DHCR records note the 
          date of filing, through the year 1991, the records show a filing 
          date in September, 1991, with the exception of 1989, which was 
          timely filed. Therefore, rent increases subsequent to the initial 
          registered rent are not collectible prior to the filing of the 
          annual registrations in 1991. Total overcharges cannot be 
          calculated, however, without additional documentation of the rent 
          history.  The Administrator must confirm the amount of rent charged 
          and paid subsequent to the initial registered rent of $286.00 in 
          order to determine actual overcharges.

          The proceeding must therefore be remanded for additional evidence on 
          the amounts of rent charged. Copies of leases and rent receipts must 
          be submitted, if available; without them, a hearing may be required.
          If overcharges are again determined, the Administrator shall address 
          the issue of willfulness, and whether treble damages should be 
          applied.


          THEREFORE, in accordance with the Rent Stabilization Law and Code, 
          it is



          GB610289RO


          ORDERED, that this petition be and the same hereby is granted to the 
          extent of remanding this proceeding to the Rent Administrator for 
          further processing in accordance with this order and opinion. The 
          automatic stay of so much of the Rent Administrator's order as 
          directed a refund is hereby continued until a new order is issued 
          upon remand. However, the Administrator's determination as to the 
          rent is not stayed and shall remain in effect, except for any 
          adjustments pursuant to lease renewals, until the Administrator 
          issues a new Order upon remand.


          ISSUED



                                                                        
                                          LULA M. ANDERSON
                                          Deputy Commissioner




                     
































                              





    

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