AK 110235-RT
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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
AK 110235-RT
FRANK ROBBINS, DISTRICT RENT OFFICE
DOCKET NOS.:
Q-3121604-R/ CDR 25,690
PETITIONER TENANT: FRANK ROBBINS
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ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
On November 24, 1986, the above-named petitioner-tenant filed a
Petition for Administrative Review against an order issued on
October 27, 1986, by the District Rent Administrator, 10 Columbus
Circle, New York, New York, concerning housing accommodation
known as Apartment 2-G, 42-15 81st Street, Elmhurst, New York,
wherein the District Rent Administrator determined that the
tenant had not been overcharged.
On September 9, 1991, the Commissioner denied the tenant's
petition.
On October 18, 1991, the proceeding was reopened based upon an
irregularity in a vital matter.
The issue in this appeal is whether the District Rent
Adminis-trator's order was warranted.
The applicable sections of the law are Sections 2521.2, 2522.3
and 2522.4 of the Rent Stabilization Code.
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 by the administrative appeal.
This proceeding was commenced on March 22, 1984 by the tenant's
filing of a rent overcharge complaint and a fair market rent
appeal with the New York City Conciliation and Appeals Board
(CAB), the agency formerly charged with enforcing the Rent
Stabilization Law.
In its answer to the tenant's complaint, the owner (Wallman
Management Company) submitted rent ledgers for the periods:
from October, 1985 through December, 1985,
from January, 1984 through March, 1984,
from July, 1982 through September 1982,
from Mar. 1, 1977 through Mar. 30, 1977,
from January, 1976 through April, 1976,
from January, 1975 through April, 1975;
leases covering the periods:
from March, 1978 through February, 1982,
from January, 1983 through December, 1983,
from January, 1986 through December, 1987;
and several cancelled checks and invoices for improvements in-
stalled in the subject apartment prior to the commencement of the
complaining tenant's initial lease.
In Order No. CDR 24,690 issued October 27, 1986, the District
Rent Administrator determined that no rent overcharge had
occurred and dismissed the tenant's complaint. Unfortunately,
the copy of the Administrator's order which was mailed to the
tenant did not contain the second page of the rent calculation
chart.
In this petition, the tenant contended in substance that the
Dis-trict Rent Administrator's order was incorrect and should
have been reversed because the order failed to compute the legal
regulated rents for his tenancy and because he was never sent a
copy of the owner's answer to his complaints.
In response, the owner contended in substance that it submitted a
complete rental history to the Division on August 21, 1986 and
that the tenant's petition should be denied.
On March 1, 1991, the Administrative Review Unit of the Division
of Housing and Community Renewal (DHCR) mailed to the tenant
com-plete copies of the owner's answer to the tenant's complaint
and the Administrator's order which included the second page of
the rent calculation chart. No response was received from the
tenant.
On September 9, 1991, the Commissioner denied the tenant's
petition based upon the tenant's failure to set forth an
objection to the Administrator's order.
On October 18, 1991, the proceeding was reopened based upon an
irregularity in a vital matter in that the tenant's
representa-tive was never served with complete copies of the
owner's answer to the tenant's complaint and the Administrator's
order.
On October 29, 1991, the tenant's representative was served with
a copy of the owner's answer to the tenant's original complaint
and a complete copy of the District Rent Administrator's order.
On December 6, 1991, the tenant representative submitted her
response to the owner's answer and contended in substance that
the owner had not submitted any proof that it had served the
prior tenant with the Initial Legal Regulated Rent Notice (DC-1
Notice), therefore the tenant herein was eligible to file a fair
market rent appeal; the owner did not supply the Division with
all of the leases for the prior and current tenants; the com-
plaining tenant was not given copies of his initial and renewal
leases by the owner; the complaining tenant's vacancy lease did
not contain a rent stabilization rider, therefore the status of
the subject apartment during the prior tenant's occupancy was
unknown; the former president of the tenant's association for the
subject building stated that two fires occurred in the apartment
above the subject apartment causing extensive damage to the
subject apartment necessitating extensive repairs after the prior
tenant moved out; it was unfair to require the complaining tenant
to pay for all the repairs/improvements which were necessary due
to the fire; the complaining tenant has an Imperial stove which
is contrary to the owner's submission of documentation of having
installed a Slattery stove; and the cost of $3,784.00 to replace
the bathroom tiles was exorbitant. In support of these conten-
tions, the tenant representative submitted an affidavit of the
former President of the Tenant's Association dated December 9,
1991.
The Commissioner is of the opinion that this proceeding must be
remanded for further processing.
A review of the record in the instant case indicates that the
prior tenant (Herrera) was the first rent stabilized tenant who
commenced occupancy of the subject apartment on March 1, 1974,
however the owner did not submit any evidence to prove that a DC-
1 Notice was served on the first rent stabilized tenant.
Accordingly, the Commissioner finds that the Administrator
improperly ignored the tenant's contention that he was entitled
to file a fair market rent appeal. Thus, this proceeding must be
remanded to determine whether the tenant was entitled to
challenge the initial legal regulated rent pursuant to Sections
25 and 26 of the former Rent Stabilization Code, and if so, to
determine whether the initial legal regulated rent exceeds the
fair market rent for the subject apartment. The owner must first
be given the opportunity to establish if a DC-1 Notice was served
on the first rent stabilized tenant. If not, the tenant's
contention regarding the fair market rent appeal filed prior to
April 1, 1984 should be considered on the merits. Also, the
Administrator must establish the lawful stabilization rents and
calculate any excess rent based on a complete rental history from
the base rent date. Furthermore, this proceeding must be
re-manded to determine whether the owner failed to issue the
tenant proper vacancy and renewal leases. Finally, this
proceeding must be remanded to determine whether the work done
and the equipment installed in the subject apartment while it was
vacant and prior to the commencement of the complaining tenant's
occupancy quali-fied as improvements warranting a rent increase
or whether the work done and equipment installed was mere
maintenance and re-pairs for which a rent increase is not
authorized. Specifically, the Administrator should investigate
the validity of the stove installation and the cost for the
replacement of the bathroom wall and floor tiles.
The Commissioner notes that the current managing agent of the
subject premises is Setam Realty Company of 82-01 Rockaway
Boulevard, Ozone Park, New York 11416.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is, granted
to the extent of remanding this proceeding to the District Rent
Administrator for further processing in accordance with this
Order and Opinion. The Administrator's order is hereby revoked.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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