BA 210047 RO
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.: BA 210047 RO
Regina Obstfeld, DISTRICT RENT ADMINISTRATOR
DOCKET NO.: TA 12078
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE APPEAL
On December 31, 1986 the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
December 8, 1986 by the Administrator, (Columbus Circle)
concerning housing accommodations known as Apartment A-4, 315
68th Street, Brooklyn, New York, wherein the Administrator
determined the fair market rent pursuant to the special fair
market rent guideline.
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 by the tenant filing a
fair market rent appeal application, wherein the tenant stated
that she took occupancy pursuant to a one year lease commencing
April 14, 1983 and expiring April 14, 1984 at a monthly rent of
$380.00.
The owner was notified of the tenant's fair market rent appeal
and was afforded an opportunity to submit post-June 30, 1974
comparability data. The owner was advised that proof of service
of an initial legal regulated rent notice (DC-2 notice) was
required for comparable apartments.
In response, the owner stated that the subject apartment was
decontrolled on April 15, 1983. The owner also listed the
subject line but did not submit proof of service of the DC-2
notice. The owner was then requested to submit data with respect
to the 1983 fuel cost adjustment and complete renewal leases for
the subject apartment but failed to do so.
In Docket number TA 12078 the Administrator adjusted the initial
legal regulated rent by establishing a fair market rent of
$238.75 effective April 14, 1983. The owner was directed to
refund to the tenant an excess rent in the amount of $1836.25,
including excess security. The Administrator stated that the
owner had failed to submit usable comparability data. Therefore
the fair market rent was determined solely on the basis of the
special fair market rent guidelines.
In this petition the owner contends, in substance, that the
apartment became decontrolled on April 3, 1983; that the subject
BA 210047 RO
tenant's fair market rent was based on a comparability study
utilizing two apartments (B4 and D4) which are similar.
Submitted for the first time on appeal are copies of leases for
these apartments and copies of a DC-2 notice (without proof of
service) and the 1983 fuel cost adjustment for the subject
apartment.
After careful consideration of the entire record, 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 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 DHCR's
procedure for fair market rent appeal cases filed prior to April
1, 1984 to allow owners to submit June 30, 1974 free market
rental data for complete lines of apartments, beginning with the
subject line. The average of such comparable rentals will then
be updated by annual guidelines increases. Alternatively, DHCR
procedure allows owners to have comparability determined on the
basis of rents charged after June 30, 1974. In order to use this
method, owners were required, prior to November 1, 1984, to
submit rental history data for all stabilized apartments in the
subject premises and subsequent to November 1, 1984, to submit
such data for complete lines of apartments beginning with the
subject line. Post-June 30, 1974 rent data will be utilized if
the comparable apartment was rented to a first stabilized tenant
within one year of the renting of the subject apartment and if
the owner submits proof of service of an initial legal regulated
rent notice (DC-2 Notice) or apartment registration form
indicating that the rent is not subject to challenge.
A review of the record in the proceeding below discloses that the
owner was afforded an adequate opportunity, including extensions
of time, to submit the required comparability data, including DC
2 notices and data with respect to the 1983 fuel cost adjustment
for the subject apartment. However, the owner failed to do so.
Accordingly, the Commissioner is of the opinion and finds that
the owner's submission of claimed comparability data on appeal
is untimely; and that since there was no denial of due process in
this case which would warrant considering the submission on
administrative appeal, the Administrator properly determined the
fair market rent solely on the basis of the special fair market
rent guidelines.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is, denied;
and that the Rent Administrator's order be, and the same hereby
is affirmed.
ISSUED:
BA 210047 RO
JOSEPH A. D'AGOSTA
Deputy Commissioner
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