HJ410221RO


                                  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. HJ410221RO
                                              :  DRO DOCKET NO. FH410247R
          MANUEL MARTINEZ                        TENANT: BARBARA YANOSCIK     
           

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

               On August 3, 1994, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on       
          June 30, 1993, by the Rent Administrator, 92-31 Union Hall Street, 
          Jamaica, New York, concerning the housing accommodations known as   
          242 West 71 Street, New York, New York, Apartment No. 1F
          wherein the Rent Administrator determined that the owner had 
          overcharged the tenant.

               The Administrative Appeal is being determined pursuant to the 
          provisions of Sections 2522.6, 2522.7 and 2521.1 (c)(2) 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 on 
          August 12, 1991 of a rent overcharge complaint by the tenant.

               In response to the tenant's complaint, the owner stated in 
          substance that the tenant's occupancy was only temporary pursuant to 
          a signed agreement and that the rent being charged was less than 
          could have been legally charged.  The owner stated that the last 
          lawful rent had been $410.89 to which could have been added $129.95 
          for individual improvements made to the apartment prior to the 
          tenant's occupancy at a total cost of $5198.00, as well as 
          guidelines increases and rent increases for building wide 
          improvements. 

               In a final notoice sent to the owner on May 25, 1993, the owner 
          was notified that the first rent would be established at $500.00 and 
          that treble damages would be imposed on the presumed willful 
          overcharge collected unless overcome by the owner's submission of 
          evidence to rebut willfulness.  

               In his response to the final notice, the owner stated that 1) 
          the tenant and her spouse had vacated  and sublet the subject 







          HJ410221RO

          premises without the owner's permission;  2) HPD had issued a 
          violation against the owner because more than one adult was residing 
          in the apartment;  3) the final order ignored all improvements and 
          guidelines in establishing the legal rent;  4)  the final order 
          fails to acknowledge the owner's purpose in purchasing the property 
          as residence for his family.  

               In the order issued on June 30, 1993, the Rent Administrator  
          established the legal stabilization rent at $500.00 as of March 
          1,1992 and determined that the owner had collected an overcharge of 
          $3,885.00 inclusive of treble damages from September 1, 1989 through 
          August 31,1991.  

               In this appeal, the owner reiterates the statements made in 
          response to the final notice.  

               In answer to the appeal, the tenant contends that 1) the 
          petition should be dismissed as untimely since it was not received 
          within 35 days of the issuance of the Rent Administrator's order;  
          2) the courts have concluded that the owner has not complied with 
          the Rent Stabilization Law;  3) the owner has committed acts of 
          fraud and violence against the tenant.  

               In reply, the owner states that his appeal should be accepted 
          as timely because it was timely mailed from Mexico City.  Mail 
          delays probably caused its untimely arrival in New York;  2) the 
          tenant abandoned the premises and illegally sublet the unit to one 
          who also left the premises;  3)  the courts have not established the 
          legal rent;  4) the owner has not committed any acts of violence 
          against the tenant.  

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

               This petition is accepted as timely because the postmark 
          indicates that  pursuant to Code Section 2529.2, it was put into the 
          mail within 35 days of the issuance of the order appealed.  

               The complainant's rights as a rent stabilized tenant cannot be 
          compromised and were established by Order No. ZFH410073RV granted on 
          October 9, 1992. 

               With respect to the establishment of the legal stabilization 
          rent, the evidence of record indicates that  from the applicable 
          base date until the tenant's occupancy, the subject apartment had 
          been owner-occupied.  Consequently, the first rent charged and paid 
          by the tenant on August 15, 1988, $500.00, is the initial legal 
          stabilized  rent.  Orders BI410052OM and CA301138OM became effective 
          before the complainant's occupancy and thus the rent increases 
          granted therein are incorporated in the initial legal stabilized 
          rent.    

               The Commissioner finds that any permissible rent increase for 
          individual apartment improvements pursuant to Code Section 
          2522.4(a)(1), having been made before the commencement of the 
          complainant's occupancy, is similarly incorporated in the initial 
          rent.  



          HJ410221RO

                 The Commissioner has carefully considered the remainder of 
          the owner's contentions and finds that they are not relevant to the 
          initial legal rent or to the Rent Administrator's determination that 
          an overcharge was collected.  

               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.  

               A copy of this order is being semt to the tenant on occupancy.

               The Commissioner has determined in this Order and Opinion that 
          the owner collected overcharges of $$3,885.00.  This Order may, upon 
          expiration of the period for seeking review of this Order and 
          Opinion pursuant to Article Seventy-eight of the Civil Practice Law 
          and Rules, be filed and enforced 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 ajudgment pursuant to 
          section 5004 of the Civil Practice Law and Rules from the issuance 
          date of th Rent Administrator's order to the issuance date of the 
          Commissioner's Order.

               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
                                          Deputy Commissioner




                     


















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