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.: BD 610535-RO
:
DRO DOCKET NO.: B 3100282-R
SAILON REALTY CORP., CDR 29,559
PETITIONER :
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ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
On April 25, 1987, the above named petitioner-owner filed a Petition for
Administrative Review against an order issued on March 24, 1987, by the
District Rent Administrator, 10 Columbus Circle, New York, New York,
concerning housing accommodations known as Apartment 2B, 2043 Holland
Avenue, Bronx, New York, wherein the District Rent Administrator
determined that the owner had overcharged the tenant.
The Commissioner notes that this proceeding was initiated 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 appeal is whether the District Rent Administrator's
order was warranted.
The applicable sections of the law are Section 25 of the former Rent
Stabilization Code and Section 2522.3 of the current 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 commenced on February 16, 1984, by the tenant's filing
of a rent overcharge complaint 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 complaint, the owner stated that the tenant herein
was the first rent stabilized tenant of the subject apartment, that the
tenant was being charged a fair market rent, and that there was no
overcharge.
DOCKET NUMBER: BD 610535-RO
On March 15, 1986, the Division of Housing and Community Renewal (DHCR)
requested from the owner copies of the DC-2 notice with proof of service
and the R-42 notice. On April 7, 1986, the owner mailed to DHCR copies of
an Owner's Report of Vacancy Decontrol dated March 21, 1986 and a Notice
to Rent Stabilized Tenant of Right to File a Fair Market Rent Appeal which
was served on the tenant on March 26, 1986.
In Order Number CDR 29,559 issued March 24, 1987, the District Rent
Administrator determined that the base rent for the subject apartment was
$325.09, and that the tenant had been overcharged from May 1, 1982 through
April 30, 1984. The Administrator directed the owner to refund to the
tenant $972.00 which included excess security and interest on that portion
of the overcharge occurring on or after April 1, 19 84.
In this petition, the owner contends in substance that the District Rent
Administrator's order is incorrect and should be reversed because the
tenant herein is the first rent stabilized tenant of the subject
apartment, the owner was entitled to charge the tenant a fair market tent
without regard to the vacancy and renewal factors set forth in Rent
Guidelines Board Order Number 13, and the Administrator incorrectly
utilized the prior tenant's rent control rent as the base rent to compute
the complaining tenant's initial rent.
The tenant did not submit a response to the owner's petition.
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 tenant
herein was the first rent stabilized tenant and was questioning her
initial rent. Accordingly, this proceeding is being remanded to treat the
tenant's overcharge complaint as a fair market rent adjustment
application filed prior to April 1, 1984. All parties are to be notified
and given a chance to submit evidence in such remanded proceeding.
The Commissioner notes that the DC-2 notice wasn't served on the tenant
until March 26, 1986 more than two years after the tenant's filing of her
complaint and almost four years after the tenant moved into the subject
apartment.
Accordingly, the Commissioner finds that the tenant was entitled to
challenge the initial legal regulated rent pursuant to Section 25 of the
former Rent Stabilization Code.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
DOCKET NUMBER: BD 610535-RO
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. Any arrears owed by the tenant
as a result of this order shall be paid by the tenant to the owner in
equal monthly installments over the course of the next twelve months.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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