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
APPEALS OF DOCKET NO. BD 210094 RO
: BC 210074 RT
ARTHUR WIENER AND IRA D. BLUM DRO DOCKET NO: 7579
PETITIONERS :
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ORDER AND OPINION REMANDING PROCEEDING TO RENT
ADMINISTRATOR
On April 2, 1987 and March 4, 1987, the above-named
petitioner-owner and tenant filed Petitions for Administrative
Review against a corrected order issued on February 26, 1987, by
the Rent Administrator, 10 Columbus Circle, New York, New York,
concerning the housing accommodations known as 1360 Ocean Parkway,
Brooklyn, New York, Apartment No. 2M, wherein the Rent
Administrator determined the fair market rent pursuant to the
special fair market rent guideline promulgated by the New York
City Rent Guidelines Board for use in calculating fair market rent
appeals. These petitions are being consolidated herein.
The Administrative Appeals are being determined pursuant to
the provisions of Section 26-513 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order
was warranted.
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 appeals.
This proceeding was originally commenced in July 1984, by the
tenant's filing of a Tenant's Objection to Rent in which the
tenant stated that there was a rent overcharge and that he was
questioning the fair market rent. The tenant first took occupancy
of the subject apartment on December 1, 1976 at a monthly rental
of $240.00.
In response to the tenant's objection, the owner submitted a
rental history consisting of copies of leases from 1976.
In Order Number 7579 issued on February 12, 1987, the Rent
Administrator established a fair market rent of $189.24 effective
December 1, 1976 pursuant to a finding that the subject apartment
had previously been subject to rent control and that the 1976
maximum base rent rate (hereafter MBR) for the subject apartment
BD 210094 RO, BC 210074 RT
was $164.56. The Rent Administrator further determined that
excess rent of $7408.85 had been collected from December 1, 1976
through November 30, 1986, and directed the owner to refund this
excess rent to the tenant.
In Corrected Order Number 7579 issued on February 26, 1987,
the Rent Administrator established the same fair market rent of
$189.24 effective December 1, 1976, but changed the refund period
to April 1, 1980 through February 28, 1987, and found a total
excess rent of $5400.00 during this period.
In the owner's petition, the owner alleges in substance that
construction of the subject premises was completed on August 12,
1964; that the subject premises was never subject to rent control;
and that therefore the tenant was precluded from filing a fair
market rent appeal. In support of such contention, the owner
submitted a copy of a 1964 Certificate of Occupancy for 1358-1376
Ocean Parkway. However such certificate is not clearly legible
and appears to refer to a swimming pool.
In the tenant's petition, the tenant alleges in substance
that the February 12, 1987 order should not have been corrected
and that he is entitled to a refund of $7408.85 as determined in
such order rather than the refund of $5400.00 as determined in the
corrected order.
The Commissioner is of the opinion that this proceeding
should be remanded for further processing.
An examination of the rent records and evidence in this case
is inconclusive on the issue as to whether the subject premises
was ever subject to the rent control law. The Rent
Administrator's listing of a 1976 MBR for the subject apartment is
not supported by documentary evidence in the file and such
documentary evidence has also not been located at the appeal
level. In addition, the owner's Certificate of Occupancy which
appears to refer to a swimming pool does not disclose when the
subject premises was constructed. Accordingly the proceeding must
be remanded for a determination of this issue with both parties
being afforded an opportunity to submit additional evidence. If
it is found that the owner is correct that the subject premises
was never subject to rent control, then the tenant's fair market
rent appeal must be rejected and the tenant's overcharge complaint
determined on the merits. If it is found that the subject
premises was subject to rent control, then the fair market rent
appeal order should be upheld and a determination made with regard
to the tenant's contention on appeal as to the effective period
for the refund of excess rent.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
BD 210094 RO, BC 210074 RT
ORDERED, that these petitions for administrative review 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
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ADMINISTRATIVE REVIEW BUREAU
COVERING MEMORANDUM
ARB Docket No.: BD 210094 RO, BC 210074 RT
DRO Docket No/Order No.: 7579
Tenant(s): Ira D. Blum
Owner: Arthur Wiener
Code Section: 26-513 of Rent Stabilization Law
Premises: 1360 Ocean Parkway, Brooklyn, New York, Apt. 2M
Order and Opinion Remanding Proceeding
Proceeding remanded to determine issue of whether subject
premises was ever rent controlled thereby entitling tenant to be
eligible to file a fair market rent appeal.
APPROVED:
Processing Attorney:
Supervising Attorney:
Director:
Deputy Commissioner:
Mailed copies of Order and Determination to:
Tenant(s)
Owner
Tenant's Atty
Owner's Atty
Date: : by
signature
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