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 610175-RO
: (REFILE OF ARL 07767-B)
DRO DOCKET NO.: TA 11122/CTA 0275
ANTHONY MCGARRY, AS AMENDED
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The abovenamed petitioner owner timely refiled a Petition for
Administrative Review against an order issued on July 19, 1985 by the Rent
Administrator of the then World Trade Center District Rent Office
concerning the housing accommodations known as 265 East 237th Street,
Basement Apartment, Bronx.
The (now former) tenant, Richard Donahue, filed a fair market rent appeal
on March 4, 1983 alleging that he had taken occupancy a September 15, 1982
under a 2 & 1/2 year lease at a rent of $325.00.
The tenant, along with his fair market rent appeal, submitted a copy of a
lease with the prior tenant, Edwin Shipp, from January 1 to December 31,
1982 at a rent of $225.00.
The herein appealed order of the Rent Administrator established a fair
market rent of $178.88 and directed a refund of $5,011.93 in excess rent
through June 14, 1985.
The owner has alleged throughout this proceeding that he acquired the
building in 1977; that he was advised by the prior owner that the
abovenoted Edwin Shipp took occupancy sometime in 1972 as a decontrolled
tenant; that he and Mr. Shipp entered into a lease from January 1, 1978 to
December 31, 1979 at a rent of $190.00 (no copy submitted) and another
lease from January 1, 1980 to April 30, 1982 at a rent of $225.00 (also no
copy submitted); that the apartment was vacant from May 1982 until rented
to Mr. Donahue on September 15, 1982; and that various "repairs" and
alterations" were made during that period of vacancy which should merit a
rent increase.
The owner submitted copies of Mr. Shipp's 1972 income tax returns showing
the premises as his address and copies of his 1971 returns showing an
address elsewhere.
The owner also submitted copies of 16 bills for various items alleging
relating to the abovenoted repairs and alterations.
DOCKET NUMBER: AK 610175-RO (REFILE OF ARL 07767-B)
The Commissioner is of the opinion that the proceeding should be remanded
for further processing.
The Commissioner notes that it is unusual for an owner to be in possession
of a tenant's income tax returns and the owner should be required to
explain this on remand.
However, those returns along with the copy of Mr. Shipp's lease submitted
by the complainant tenant do indicate the possibility of a prior tenancy
which bridged the ETPA base date. It was, therefore, premature to
establish this fair market rent without further investigation.
The Commissioner further notes that there is presently still not a
complete rental history. The tenant may, therefore, be entitled to a
default procedure if the owner cannot submit such a rental history on
remand.
The bills submitted by the owner, without an itemized cost breakdown, are
not sufficient to show what items relate to "repairs" warranting no rent
increase or to "alterations" which might warrant a rent increase and were
properly disregarded by the Administrator. However, an remand, the owner
should be afforded an opportunity to clarify the matter.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, remanded to the
Rent Administrator for further processing in accord herewith. The Rent
Administrator's order remains in full force and effect but the direction
to refund excess rent is stayed until a new order is issued on remand.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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