STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X S.J.R. 6057
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. BB210022RO
: DISTRICT RENT OFFICE
Mable Nembhard, DOCKET NO. 6559
TENANT: Harclyde Waterman
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 4, 1987, the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on December 31, 1986,
by the Rent Administrator, 92-31 Union Hall Street, Jamaica, New York
concerning the housing accommodations known as 441 East 95th Street,
Brooklyn, New York, Apartment No. C2.
On September 9, 1991 the Commissioner issued an Order and Opinion
denying the owner's petition.
Subsequent thereto, the petitioner-owner filed a petition in the Supreme
Court pursuant to Article 78 of the Civil Practice Law and Rules
requesting that the Order of the Commissioner be annulled.
On May 1, 1992 the proceeding was remitted to DHCR for further
processing including petitioner's review of her Administrative file and
an opportunity by petitioner to amend and supplement her initial PAR
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 June 12, 1984 by the tenant filing an
objection to the registration statement filed by the owner. The tenant
alleged that the initial rent exceed the fair market rent for the
subject apartment. The tenant took occupancy of the subject apartment
pursuant to a lease commencing October 1, 1978 at a monthly rental of
The owner was served with a copy of the objection and provided an
opportunity to submit comparability data. There is no indication in the
record that the owner submitted such data.
In the herein appealed order, the Rent Administrator established the
fair market rent - $204.30 - effective October 1, 1978, the commencement
date of the initial rent stabilized lease, solely on the basis of the
special fair market rent guidelines. The Rent Administrator further
determined that the owner had collected excess rent in the amount of
$1,085.12 from the tenant and ordered said amount refunded to the
In this petition the owner contends that the requested evidence was
personally served on the Division of Housing and Community Renewal
As directed by the Court, on July 17, 1992, the petitioner-owner was
given access to view the files for dockets BB210022RO and 06559 pursuant
to her request under the Freedom of Information Law (F.O.I.L.).
The owner requested an extension on July 24, 1992 to supplement her
petition of February 4, 1987. However, no supplement was subsequently
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
Division policy to allow owners to submit the required comparability
data. In cases where an owner fails to submit the required
comparability data, the fair market rent is determined solely on the
basis of the special fair market rent guidelines order. Section 26-513
further provides that where it is determined that the rent charged is in
excess of the fair market rent, the Commissioner shall order a refund of
any excess rent paid since January 1, 1974 or the date of commencement
of the tenancy, whichever is later.
In this case, the record indicates that the owner did not submit
comparability data as requested. The owner did not submit any evidence
to support the contention that comparability data was personally
submitted to the DHCR.
Further although granted an opportunity to supplement her petition, the
owner failed to do so.
The Commissioner notes that a subsequent Rent Administrator's order
issued July 15, 1988 under duplicate Tenant Objection docket Z07210
determined that the tenant's initial rent of $220.00 did not exceed the
fair market rent. However the calculation of the fair market rent in
that case was predicated upon a incorrect Maximum Base Rent for the
subject apartment. Therefore, the Commissioner herein revokes order
Accordingly, the Commissioner finds that the Rent Administrator was
correct in determining the fair market rent solely on the basis of the
Special Fair Market Guidelines and was correct in determining that the
owner had collected excess rent.
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 order of the Rent Administrator issued under docket 6559 be,
and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA