BB210022RO
                             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  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        
                   
                            PETITIONER    : 
      ------------------------------------X                             


           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                              AFTER RECONSIDERATION


      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 
      submission.

      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 
      $220.00.

      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 







          BB210022RO

      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 
      tenant.

      In this petition the owner contends that the requested evidence was 
      personally served on the Division of Housing and Community Renewal 
      (DHCR).

      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 
      submitted.

      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 
      Z07210.



       
      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.


          BB210022RO


      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.

      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner





    

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