HI410109RO

                                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.:HI410109RO

          Manhattan East Associates          DRO DOCKET NO.:ED410326R

                                             TENANT:Marla Debra Shapiro       
                               PETITIONER    
      ------------------------------------X                             


               ORDER AND OPINION DENYING FOR ADMINISTRATIVE REVIEW


      On September 24, 1993, the above-named petitioner-owner filed a Petition 
      for Administrative Review against an order issued on September 3, 1993, 
      by the Rent Administrator, 92-31 Union Hall Street, Jamaica New York, 
      concerning the housing accommodations known as 155 East 84th Street, 
      Apartment 1A, New York, New York, wherein the Administrator determined 
      that the owner had overcharged the tenant.

      The Commissioner has reviewed all of the evidence in the record and has 
      carefully considered that portion of the record relevant to the issues 
      raised in the administrative appeal.  

      This proceeding was originally commenced on April 26, 1990 when the 
      tenant filed a complaint of rent overcharge.  The tenant stated that the 
      owner's failure to provide heat, as was required by the lease, had 
      increased the rental cost of the subject premises beyond the amount 
      permitted by the Rent Stabilization Law.

      In answer, the owner stated that the tenant had been fully aware at the 
      time of renting that each tenant provided its own heat by means of 
      individual electric systems, the cost of which was to be paid directly 
      to Con Edison by the tenant.  The owner also stated that it had 
      completely renovated the subject apartment at a cost of $14,990.63 which 
      equated to a permissible rent increase of $374.76.  With its answer, the 
      owner submitted invoices and cancelled checks to substantiate its claim 
      for the individual improvements increase, a copy of the proof of service 
      of the 1985 registration, and a real estate broker's affidavit attesting 
      to the tenant's knowledge with respect to the tenant's responsibility 
      for providing heat.

      Although subsequently, on numerous occasions, the owner was requested to 
      submit a copy of the 1984 apartment registration (RR-1) along with proof 
      of its service, the owner failed to do so, but explaining that the 
      subject apartment had been vacant in 1984, submitted in its stead the 
      1985 annual registration.  The owner stated that the tenant had vacated 
      the subject apartment after filing the complaint.


      HI410109RO







          HI410109RO

           
      In Order Number ZED410326R, the Administrator established the legal 
      stabilized rent at $450.00 and determined that the owner had collected 
      an overcharge of $9,455.53, for the period from February 1, 1990 to 
      April 30, 1990, inclusive of excess security and treble damages.

      In its appeal, the owner contends in substance that the order should be 
      reversed as it had not defaulted but had responded to the complaint six 
      times, submitting proof of required registration and proof of renovation 
      costs of more than $15,000.00 where all but $1,778.67 was disallowed by 
      the Administrator.  The owner further contends that based upon the Rent 
      Regulation Reform Act of 1993, treble damages are unwarranted.

      The record indicates that the tenant herein vacated the subject 
      apartment before the issuance of the Administrator's order.

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

      Pursuant to Section 2528.1 of the Rent Stabilization Code, each housing 
      accommodation subject to the Rent Stabilization Law on April 1, 1984, or 
      thereafter, and not exempted from registration by the DHCR shall be 
      registered with the DHCR within 90 days after such date.  There is ample 
      evidence that the subject apartment has been registered annually since 
      1985.   However, there is no proof of its initial registration.  The 
      owner's claim on appeal that the apartment was registered as vacant in 
      1984 is not substantiated by the record and is, in fact, contradicted by 
      the owner's assertion to the Administrator that it believed it was 
      unnecessary in 1984 to register vacant apartments.  Further, there is no 
      evidence that the owner filed an amended initial registration upon 
      occupancy by the first rent stabilized tenant as required.

      Because the owner failed to submit proof of the initial registration, 
      the owner was required to submit a rent history from April 1, 1980, 
      including all leases from that time.  The owner's failure to comply 
      resulted in the establishment of the legal stabilization rent by means 
      of court approved default procedures.  The Commissioner notes that the 
      default method was appropriate despite the appearance in the record of 
      an Order Fixing the Maximum Rent under rent control in 1974 and the 
      filing of a decontrol report in 1976 since these documents deal with a 
      time when the subject apartment was under rent control and do not excuse 
      the failure to submit a rental history from April 1, 1980.

      Code Section 2528.4 provides, in pertinent part, that failure to 
      properly and timely comply with registration requirements bars an owner 
      from collecting any rent increases until the initial registration 
      including service on the tenant has been completed.  Since the record 
      shows that the owner failed to meet initial registration requirements, 
      the Administrator acted correctly in freezing the collectible rent at 
      the default level.  The owner is advised to file an initial registration 
      to prospectively eliminate this prenalty.

      Pursuant to Section 2522.4(a) of the Code, an owner is entitled to a 
      rent increase equal to 1/40th the cost of providing increased space and 
      services, new equipment, or new furniture or furnishings on written 
      tenant consent to the increase.  In the case of vacant housing 
      accomodations written consent is unnecessary.




          HI410109RO

      When the rent is challenged, an owner must submit documentation, 
      including invoices which state with specificity the location and the 
      nature of the work done and proof of payment as well as tenant consent 
      where required, to substantiate its entitlement to the rent increase 
      claimed.  An examination of the record discloses that the Administrator 
      was correct in allowing a rent increase for individual apartment 
      improvements of only $44.47 (1/40th of $1778.67) for the installation of 
      new equipment.  Improvement costs of $11,636.40 were correctly 
      disallowed because no proof of payment was presented and some of the 
      items such as bathroom repair, painting and floor sanding are considered 
      to be ordinary repair and maintenance; as such, their costs do not 
      qualify for a rent increase.

      With respect to treble damages, the Commissioner notes that the Rent 
      Regulation Reform Act of 1993 does not apply to proceedings initiated 
      before July 1991.  Moreover, the overcharge found herein arises not only 
      from the failure to register but also from the collection of an improper 
      rent increase based on apartment repairs and maintenance.  Accordingly, 
      the Administrator did not err in imposing treble damages.

      The Commissioner has determined in this Order and Opinion that the owner 
      collected overcharges of $9,455.53.  Upon the expiration of the period 
      for seeking review of this Order and Opinion, pursuant to Article 78 of 
      the Civil Practice Law and Rules, the tenant may file this Order as a 
      judgment.  Where the tenant files this order as a judgment, the County 
      Clerk may add to the overcharge interest at the rate payable on a 
      judgment pursuant to Section 5004 of the Civil Practice Law and Rules 
      from the date of the Rent Administrator's Order to the issuance date of 
      the Commissioner's order.

      A copy of this order is being sent to the current tenant in occupancy.

      The owner is directed to reflect the findings and determinations made in 
      this order on all future registration statements, including those for 
      the current year if not already filed, citing this order as the basis 
      for the change.  Registration statements already on file, however, 
      should not be amended to reflect the findings and determinations made in 
      this order.  The owner is further directed to adjust subsequent rents to 
      an amount no greater than that determined by this order plus any lawful 
      increases.

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

      ORDERED, that this petition be, and the same hereby is, denied and the 
      Rent Administrator order be, and the same hereby is, affirmed. 

      ISSUED:
                                                                              
                       
                                                                  
                                        JOSEPH A. D'AGOSTA
                                        Deputy Commissioner                  





    

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