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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NOS. ARL11553L
Elsie Cardia, : DISTRICT RENT OFFICE
DOCKET NOS. L3114893R/T
PETITIONER :
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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
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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
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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
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