ADM. REVIEW DOCKET NOS. BD 110071 RO & BD 110326 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 NOS. BD 110071 RO
BD 110326 RO
: D.R.O. DOCKET NO. 8223
ZEAL MANAGEMENT
PETITIONER : ---
PETITIONER :
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ORDER AND OPINION REMANDING PETITIONS FOR ADMINISTRATIVE REVIEW
On April 1, 1987 the above-named petitioner-owner filed
Petitions for Administrative Review against an order issued on
February 25, 1987 by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, NY, concerning housing accommodations known as
76-15 35th Avenue, Jackson Heights, New York, Apartment No. 60.
A review of the record reveals that above mentioned petitions
are duplicate proceedings which were inadvertently assigned
separate docket numbers. The Commissioner deems it appropriate to
consolidate said petitions in this proceeding.
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 July 18, 1984 by the tenant
filing an objection to the registration statement filed by the
owner. The tenant alleged, among other things that the initial
rent of the subject apartment exceeded the fair market rent.
In the herein appealed order, the Rent Administrator
established a fair market rent of $171.30, effective July 1, 1980,
the commencement date of the initial rent stabilized lease,
determined that the owner had collected $14,473.29 in excess rent
from the tenant and directed that the excess rent be refunded to
the tenant. The Rent Administrator determined the fair market
rent based solely on the Special Fair Market Rent Guidelines based
on a finding that the owner had failed to submit comparability
data.
In this petition, the owner contends that the fair market
rent appeal should be dismissed because the tenant failed to
allege any facts and supply any evidence to support the appeal.
The owner further contends that assuming arguendo the tenant's
objection was properly treated as a fair market rent appeal, it
ADM. REVIEW DOCKET NOS. BD 110071 RO & BD 110326 RO
was not provided an opportunity to submit comparability data. The
owner also submitted rental data for one apartment in the subject
building.
In response, the tenant asserts, in substance, that the Rent
Administrator's order should be upheld.
The Commissioner is of the opinion that these petitions
should be remanded to the Rent Administrator for further
consideration.
Regarding the sufficiency of the tenant's fair market rent
appeal, Section 2522.3 of the Rent Stabilization Code provides:
"The tenant need only allege in such application:
(1) that the Initial Legal Regulation is in excess
of Fair Market Rent; and
(2) such facts which, to the best of his information
and belief, support such allegation."
The owner claims that since the tenant failed to present any facts
to support the appeal, he failed to satisfy Section 2522.3(b) of
the Code and that the appeal should therefore be dismissed. The
Commissioner rejects the owner's argument. Since the directive to
provide facts is qualified by the phrase, "to the best of his
information and belief," it cannot be read to create a firm
requirement. The Commissioner does not see why a tenant who
cannot provide any information should have his appeal rejected
whereas a tenant who makes a statement in good faith but which is
completely false would be permitted to file an appeal.
Furthermore, had the drafters of the Rent Stabilization Code
intended such a strict requirement, they would have repeated it in
Section 2522.3(c) which sets forth the grounds for the rejection
of an appeal. Accordingly, the Commissioner finds that the
tenant's objection was properly accepted as fair market rent
appeal.
Regarding the owner's contention that it was not provided an
opportunity to submit comparability data, Section 26-516 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 refund of any excess
rent paid since January 1,1974 or the date of commencement of the
tenancy, whichever is later.
ADM. REVIEW DOCKET NOS. BD 110071 RO & BD 110326 RO
In the instant case, an examination of the record fails to
clearly indicate that the owner was afforded an opportunity to
submit comparability data in the proceeding before the Rent
Administrator. Therefore, this proceeding must be remanded to
afford the owner an opportunity to submit such data. Upon remand,
the contentions raised and the evidence submitted by the owner on
appeal regarding comparable apartments should be considered.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that these petitions be, and the same hereby are,
granted to the extent of remanding this proceeding to the Rent
Administrator for further processing in accordance with this order
and opinion. The automatic stay of so much of the Rent
Administrator's order as directed a refund is hereby continued
until a new order is issued upon remand. However, the
Administrator's determination as to the rent is not stayed and
shall remain in effect, except for any adjustments pursuant to
lease renewals, until the Administrator issues a new Order upon
remand.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
ADM. REVIEW DOCKET NOS. BD 110071 RO & BD 110326 RO
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