ADM. REVIEW DOCKET NOS. BD 510295-RO; BD 510428-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 510295-RO
: BD 510428-RO
DRO DOCKET NO.: 015384
237 WEST 230TH STREET REALTY CORP.,
TENANT: NANCY KISTNER
PETITIONER :
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ORDER AND OPINION REMANDING PROCEEDINGS ON APPEAL
On April 22 and April 30, 1987 t e above named petitioner-
owner was deemed to have filed Petitions for Administrative Review
against an order issued on March 18, 1987 by the District Rent
Administrator, 10 Columbus Circle, New York, New York concerning
housing accommodations known as Apartment No. 3F at 239 West 230th
Street, New York, New York wherein the District Rent Administrator
determined that the owner had collected excess rent. The latter
petition, assigned Docket No. BD 520428-RO, was dismissed on June
12, 1987 as untimely. When the owner submitted proof that the
petition was actually timely filed on April 22, 1987, the
Commissioner issued an order on July 31, 1987 reopening the
proceeding for further consideration. As the two petitions are
identical, the two proceedings are herein merged and decided in
one order and opinion.
The issue in these appeals is whether the District 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 by the filing in
August, 1984 of a Tenant's Fair Market Rent Adjustment Application
("fair market rent appeal"), in which the tenant stated that she
had commenced occupancy on August 1, 1984 at a rent of $306.00 per
month.
The owner was served with a copy of the application and
requested to respond. In an answer mailed on June 13, 1986 the
owner contended in substance that the complainant was the first
stabilized tenant, and that her initial rent was adjusted to an
amount based on a vacancy allowance, on the cost of a new stove,
new refrigerator and new cabinets, and on the rent of similar
ADM. REVIEW DOCKET NOS. BD 510295-RO; BD 510428-RO
apartments in the building. On December 17, 1986 the owner was
sent forms for use in submitting data about comparable apartments,
but the owner did not make any further submissions.
In an order issued on March 18, 1987 the District Rent
Administrator, because the owner had not submitted comparability
data or evidence of the installation of new equipment, established
the Fair Market Rent of $243.65 by use of the Special Fair Market
Rent Guidelines Order, and directed the owner to refund the excess
rent of $1,558.75 collected as of July 30, 1986. The
Administrator's order, while listing the correct street addresses
and ZIP Codes of the tenant and owner, stated that they were in
Brooklyn rather than The Bronx. The file of the proceeding before
the Administrator does not indicate that either of them was
returned by the Postal Service.
In this petition the owner contends in substance that it was
not afforded an opportunity to submit updated comparability data;
that this argument is enhanced by the fact that the
Administrator's order was sent to Brooklyn instead of The Bronx;
that it in fact did not even receive the Administrator's order
until given a copy by the tenant; that there is one apartment in
the subject building [not in the same line] suitable for use in
the comparability test; that documentation now submitted showing
the installation of new equipment should be accepted, as the
Commissioner has indicated in Saxony Realty Associates
(Administrative Review Docket No.ARL 06156-Q) that the DHCR has a
duty to request additional information when a particular
submission is inadequate for its proffered purpose; and that the
Administrator should have taken into account a rent increase
effective February 1, 1986 granted for a Major Capital
Improvement. With its petition the owner has enclosed a copy of
an order granting a rent increase for Major Capital Improvements,
rent ledgers regarding the claimed comparable apartment, and
documentation of the expenditure of $214.40 for new kitchen
cabinets just prior to the tenant commencing occupancy.
In answer, the tenant asserts in substance that the owner was
afforded an opportunity to submit comparability data; that the
rent of the allegedly comparable apartment has in any event not
been shown to be a lawful rent; that any rent increase for new
equipment could only be 1/40th of its cost; that any later-granted
rent increase for Major Capital Improvements is not relevant to
the lawful rent on August 1, 1984; that she had no difficulty in
receiving her copy of the order; that she did not give a copy to
the owner; and that the owner must also have received its copy
when she received hers.
The Commissioner is of the opinion that these proceedings
should be remanded to the Rent Administrator.
While it may be that the orders mailed to the tenant and the
owner in Brooklyn actually reached them at their correct addresses
in The Bronx, it cannot be ascertained from the file what address
was used in mailing the December 17, 1986 packet of forms to the
owner, which packet included twelve pages of detailed forms and
ADM. REVIEW DOCKET NOS. BD 510295-RO; BD 510428-RO
instructions for the owner to use in furnishing comparability data
as well as setting forth rent increases due to new equipment.
Because of the possibility that the packet was mailed to Brooklyn
and did not reach the owner, these proceedings are being remanded
for consideration of the evidence which the owner would have been
able to submit had it received the packet. The Commissioner notes
that additional evidence will be necessary to establish the
comparability as well as the lawfulness of the rent of Apartment
3G, and that data on the controlled and stabilized rents of all
apartments in both the "F" and "G" lines will be required as well.
While further evidence is being accepted from the owner
because of the possibility that forms specifically intended for
the owner were not received by it, the Commissioner does not wish
to appear to accede to the owner's position that the order in
Docket No. ARL 06156-Q imposes a duty on the DHCR to request
additional information. In ARL 06156-Q the owner was not allowed
to submit new evidence, although it was acknowledged that the DHCR
had on some occasions informed owners who had partially complied
with a request for documents of the incompleteness of the data
submitted, and given them a chance to file the missing documents.
In the present case, if it were clear that the owner had actually
received the December 17, 1986 mailing but had not submitted any
comparability data or evidence regarding new equipment, such
evidence would not have been accepted for the first time on
appeal.
While the tenant is correct that the increase for Major
Capital Improvements is not relevant to the lawful rent when she
commenced occupancy on August 1, 1984, since it was effective only
as of February 1, 1986, it is relevant to a portion of the time
period concerned in the Administrator's order.
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 these proceedings to the
District Rent Administrator for further processing in accordance
with this order and opinion. The automatic stay of so much of
the District 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:
ADM. REVIEW DOCKET NOS. BD 510295-RO; BD 510428-RO
ELLIOT SANDER
Deputy Commissioner
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