IA210078RO


                                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.: IA210078RO

      Guiseppe D'Arancio,                    DRO DOCKET NO.: ZDA210048R

                                             TENANT: Bruno Lisciotto          
                           PETITIONER    
      ------------------------------------X                             


          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW

      The above named petitioner-owner filed a Petition for Administrative 
      Review against an order issued on May 21, 1993 by the Rent 
      Administrator, 92-31 Union Hall Street, Jamaica, New York concerning 
      housing accommodations known as Apartment 3R at 1567 Bath Avenue, 
      Brooklyn, New York wherein the Rent Administrator determined that the 
      owner had overcharged the tenant.

      The proceeding was originally commenced by the filing in January, 1989 
      of a rent overcharge complaint by the tenant, in which he stated he had 
      commenced occupancy on March 15, 1986 at a rent of $400.00 per month.

      In answer, the owner contended that the subject premises was a five- 
      family house, and was therefore exempt from rent stabilization.  He 
      submitted a Certificate of Occupancy dated November 5, 1969 showing the 
      building as consisting of five units.  The record shows that the tenant 
      herein vacated the subject apartment prior to the issuance of the Rent 
      administrator's order.

      In an order issued on May 21, 1993 the Administrator determined an 
      overcharge of $17,214.21, since the owner had defaulted on both the 
      rental history and the proof of registration.

      In his petition, the owner contends among other things that the building 
      is a five-family home which does not have to be registered with the 
      DHCR.

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

      A building with six or more units and subject to rent stabilization on 
      the stabilization base date generally remains subject to the Rent 
      Stabilization Law and Code even if the number of units is later reduced 
      below six.  A building completed after February 1, 1947 and prior to 
      March 10, 1969 would generally have become subject to stabilization by 
      virtue of the Rent Stabilization Law of 1969, and as such would have a 
      stabilization base date of May 31, 1968 or the date it was completed, 
      whichever was later.  In the present case DHCR records show that there 
      were six rent controlled apartments in 1943.  Since the building was 
      completed prior to February 1, 1947, it had been subject only to rent 







      IA210078RO


      control, and apartments becoming vacant on or after July 1, 1971 became 
      exempt from any rent regulation.  It was only with the passage of the 
      Emergency Tenant Protection Act of 1974 that the building was 
      potentially liable for stabilization.  However, on the June 30, 1974 
      stabilization base date of the ETPA, the building had only five 
      apartments, and never contained more than five apartments subsequent to 
      the June 30, 1974 base date.  Therefore, none of the apartments have 
      ever been stabilized.  The DHCR therefore had no authority to regulate 
      the subject apartment.  (It is not rent stabilized, and it is also not 
      rent controlled since the subject apartment was vacated after June 30, 
      1971 prior to the initial occupancy of the tenant herein.)

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

      ORDERED, that this petition be, and the same hereby is, granted and that 
      the Rent Administrator's order be, and the same hereby is, revoked in 
      accordance with this order and opinion.

      ISSUED:



                                                                  
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner
    

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