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 NO. BE 210318 RO
: DRO DOCKET NO. ZK-002624-R
TROY REALTY CO. TENANT: IRA GREENFIELD
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 9, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
April 30, 1987, by the Rent Administrator, Gertz Plaza, Queens,
New York, concerning the housing accommodations known as 2065
Ocean Avenue, Brooklyn, New York, Apartment No. 1B, 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.
The Administrative Appeal is being determined pursuant to the
provisions of Section 26-513 of the Rent Stabilization Law.
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 appeal.
This proceeding was originally commenced in July 1985, by the
tenant's filing of a complaint in which he questioned the fair
market rent of the subject apartment and stated that he first
moved to the subject apartment on February 1, 1985 at a rental of
$600.00 per month.
In an answer to the tenant's complaint dated August 26, 1985,
the owner stated in substance that the tenant was served with the
required DC-2 Notice and that the tenant's complaint must be
dismissed because it was not filed within ninety days of service
of the DC-2 Notice.
In rebuttal, the tenant stated in substance that he was never
served with the DC-2 Notice.
On February 6, 1987, a hearing was held before an
Administrative Law Judge to determine the issue of whether the
tenant was served with the DC-2 Notice. The Administrative Law
BE 210318 RO
Judge found, based on the credible evidence of record that the
tenant was not served with a DC-2 Notice in accordance with the
applicable statutes and regulations.
On March 3, 1987 and March 24, 1987, the owner was afforded
an opportunity to submit comparability data to be used in
determining the fair market rent of the subject apartment. The
owner did not submit any comparability data.
In Order Number ZK-002624-R, the Rent Administrator adjusted
the initial legal regulated rent by establishing a fair market
rent of $412.94 effective February 1, 1985, the commencement date
of the initial rent stabilized lease. Based on the failure to
submit comparability data, the Rent Administrator determined the
fair market rent using the special fair market rent guidelines
alone.
In this petition, the owner contends in substance that it
was never notified of the decision of the Administrative Law
Judge, and that the DHCR failed to take into account comparable
rents in determining the fair market rent. Subsequently, the
owner submitted an affidavit from the tenant dated November 12,
1987, in which the tenant advised he was withdrawing the fair
market rent appeal against the owner which was adjudicated in the
Rent Administrator's order appealed herein.
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 DHCR's policy
to allow owners to submit comparability data. Where no usable
comparability data is submitted , the fair market rent is
determined solely on the basis of the special fair market rent
guideline.
The records in this case disclose that the owner was afforded
two opportunities to submit the required comparability data after
the conclusion of the hearing but chose not to do so. Further,
the Rent Administrator was not obligated to serve the owner with a
copy of the recommendations of the Administrative Law Judge. In
addition, the fact that the tenant decided to withdraw his
complaint after the issuance of the Rent Administrator's order
does not serve to revoke such order nor bar the adjudication of
the owner's petition. Accordingly, the Rent Administrator's
order, which held that the tenant herein was entitled to file a
fair market rent appeal and which determined the fair market rent
solely on the basis of the special fair market rent guideline, was
BE 210318 RO
warranted.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and
the same hereby is, denied, and, that the order of the Rent
Administrator be, and the same hereby is, affirmed.
ISSUED
ELLIOT SANDER
Deputy Commissioner
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ADMINISTRATIVE REVIEW BUREAU
COVERING MEMORANDUM
ARB Docket No.: BE 210318 RO
DRO Docket No/Order No.: ZK-002624-R
Tenant(s): Ira Greenfield
Owner: Troy Realty Co.
Code Section: 26-513 of Rent Stabilization Law
Premises: 2065 Ocean Avenue, Brooklyn, New York, Apt. 1B
Order and Opinion Denying Petition
Petition denied on basis evidence of record discloses that
fair market rent of subject apartment was correctly determined.
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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