ARL11553L

                                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 NOS. ARL11553L    
                                    

           Elsie Cardia,                  :  DISTRICT RENT OFFICE
                                             DOCKET NOS. L3114893R/T
                                                                   
                            PETITIONER    : 
      ------------------------------------X                             

           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


      On July 7, 1986, the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on June 19, 1986, by the 
      District Rent Administrator, 10 Columbus Circle, New York, New York, 
      concerning the housing accommodations known as 285 West 12th Street, 
      New York, New York, Apartment No. 1, wherein the District Rent 
      Administrator determined the fair market rent pursuant to the Special 
      Fair Market Rent Guideline Order promulgated by the New York City Rent 
      Guidelines Board for use in calculating fair market rent appeals.

      The Commissioner notes that this proceeding was filed prior to April 1, 
      1984.  Sections 2526.1 (a) (4)  and 2521.1 (d) of the Rent Stabilization 
      Code (effective May 1, 1987) governing rent overcharge and fair market 
      rent proceedings provide that determination of these matters be based 
      upon the law or code provisions in effect on March 31, 1984.  Therefore, 
      unless otherwise indicated, reference to Sections of the Rent 
      Stabilization Code (Code) contained herein are to the Code in effect on 
      April 30, 1987.

      The issue in this proceeding is whether the District Rent 
      Administrator's order was warranted.

      The applicable sections of the Law are Sections 26-513 and 26-516 of the 
      Rent Stabilization Law and Sections 20A, 25 and 26 of the former 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 issue 
      raised by the administrative appeal.  

      This proceeding was originally commenced in March 1984 by the filing 
      with the former New York City Conciliation and Appeals Board (CAB) of a 
      fair market rent adjustment application by the tenant (Thomas McManus) 
      who took occupancy pursuant to a lease which commenced on April 1, 1981 
      at a rental of $394.28 per month. 


      The owner was served with a copy of the tenant's application and 
      afforded an opportunity to submit June 30, 1974 rental data for 







          ARL11553L

      comparable apartments or to submit post July 1, 1974 comparability data.  
      The owner was also afforded an opportunity to submit proof that a Notice 
      of Initial Legal Regulated Rent (hereafter DC-2 Notice) had been served 
      on the first rent stabilized tenant or a subsequent tenant.

      In response, the owner did not submit the required comparability data 
      nor proof of service of the DC-2 Notice but did indicate that the tenant 
      vacated the subject apartment in November 1985.

      The tenant confirmed such move.

      In Order Number CDR18536, the District Rent Administrator determined the 
      initial legal regulated rent by establishing a fair market rent of 
      $170.10 effective August 1, 1976, the date of the commencement of the 
      initial rent stabilized lease, directed that all renewal rents be 
      computed above this initial rent and further directed the owner to 
      refund a total excess rent of $10,113.24 to the tenant herein - covering 
      the period from April 1, 1981 to November 30, 1985.  The Administrator 
      determined the fair market rent solely on the basis of the special fair 
      market rent guidelines order since the owner did not supply data for a 
      comparability study.

      In this petition, the owner contends in substance that the District Rent 
      Administrator's Order is incorrect and should be modified because she 
      made improvements in the subject apartment in 1976 prior to renting it 
      to the first rent stabilized tenant such as providing a new 
      refrigerator, installing new bathroom fixtures and a wall to wall closet 
      and relining the fire place chute, so that the initial rent of $250.00 
      in 1976 was fair.  In support of this contention the owner submitted 
      statements from a prior tenant and the current tenant of the subject 
      apartment to the effect that they believed the rent to be fair and 
      equitable.

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

      Section 26-513 of the Rent Stabilization Law provides, in pertinent part 
      that the tenant of a housing accommodation that was regulated pursuant 
      to the City Rent and Rehabilitation Law prior to July 1, 1971 and that 
      became vacant on or after January 1, 1974 may file within ninety days 
      after notice has been received (DC-2 Notice) an application for 
      adjustment of the initial legal regulated rent for such housing 
      accommodation (fair market rent adjustment application).  Section 26-513 
      further provides that fair market rent adjustment applications are to be 
      determined by the use of special fair market rent guidelines orders 
      promulgated by the New York City Rent Guidelines Board and by the rents 
      generally prevailing in the same area for substantially similar housing 
      accommodations.  In order to determine rents generally prevailing in the 
      same area for substantially similar housing accommodations, it is 
      Division policy to allow owners to submit comparability data.  In cases 
      where the owner fails to submit the required comparability data, the 
      fair market rent is determined solely on the basis of he special fair 
      market rent guidelines order.


      In the instant case, although the tenant herein was not the first rent 
      stabilized tenant, the owner was still required pursuant to Section 26- 
      513 to submit proof of service of the DC-2 Notice on the first rent 
      stabilized tenant or a tenant subsequent thereto.  The owner did not do 


          ARL11553L

      so although given an opportunity to submit such proof.  Therefore the 
      tenant herein was entitled to file a fair market rent adjustment 
      application.

      In addition, the owner in the proceeding before the Administrator did 
      not submit the required comparability data so that the Administrator 
      correctly determined the Initial Legal Regulated Rent solely on the 
      basis of the special fair market rent guidelines order.  It is noted 
      that the owner did not submit evidence to substantiate her contentions 
      that improvements were made in the subject apartment although given an 
      opportunity to do so.  Accordingly the cost of such improvements, if 
      any, was correctly not used in the calculation of the initial legal 
      regulated rent.

      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 sent to the current occupant 
      of the subject apartment.

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

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



      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner





    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name