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 410373 RO
: DRO DOCKET NO. T/A 9493
WALTER SCHNEIDER AND EDMUND KINYK TENANT: RUTH ANN FREDENTHAL
PETITIONERS :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 18, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
April 14, 1987, by the Rent Administrator, 10 Columbus Circle, New
York, New York, concerning the housing accommodations known as 519
East 6th Street, New York, New York, Apartment No. 8, 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
Section 2522.3 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 appeal.
The Commissioner notes that this proceeding was filed prior
to April 1, 1984. Sections 2526.1 (a) (4) and 2521.1 (d) of the
Rent Stabilization Code (effective May 1, 1987) governing rent
overcharge and fair market rent proceedings provide that
determination of these matters be based upon the law or code
provisions in effect on March 31, 1984. Therefore, unless
otherwise indicated, reference to Sections of the Rent
Stabilization Code (Code) contained herein are to the Code in
effect on April 30, 1987.
This proceeding was originally commenced in March, 1981, by
the filing of a rent overcharge complaint by the tenant who took
occupancy of the subject apartment pursuant to a lease commencing
July 29, 1980, at a rental of $250.00 per month.
In such complaint, the tenant stated in substance that she wanted
to know if she was being charged a fair rental and that she was
the first tenant to occupy the subject apartment since the death
of the prior long term tenant.
BE 410373 RO
The owner and prior owner were served with a copy of the
tenant's complaint and afforded an opportunity to submit June 30,
1974 or post June 30, 1974 comparability data for determining the
fair market rent of the subject apartment. The required
comparability data was not submitted.
In Order Number CDR 29,948, the Rent Administrator adjusted
the initial legal regulated rent by establishing a fair market
rent of $153.65 effective July 29, 1980, the commencement date of
the initial rent stabilized lease. Based on the failure to
submit June 30, 1974 or post June 30, 1974 comparability data, the
Rent Administrator determined the fair market rent using the
special fair market rent guidelines alone. The Administrator
directed the owner to refund excess rent in the amount of
$7852.10, including excess security, to the tenant.
In this petition, the owner contends in substance that the
Rent Administrator erroneously converted the tenant's complaint of
rent overcharge to a fair market rent appeal since the tenant had
filed a rent overcharge complaint and failed to meet the
jurisdictional prerequisites to filing a fair market rent appeal.
The Commissioner is of the opinion that this petition should
be denied.
The evidence of record indicates that the tenant herein was
the first stabilized tenant in the subject apartment and was
questioning the initial legal regulated rent in her overcharge
complaint. The Administrator therefore properly processed the
case as a fair market rent appeal. The Commissioner finds that
the tenant's challenge to the rent is not materially defective
because of the tenant's failure to allege that the initial rent
exceeded the fair market rent for the subject apartment. The
Commissioner further finds that since the directive to tenants in
Section 2522.3(b) of the current Rent Stabilization Code to
provide supporting facts is qualified by the phrase "to the best
of his or her information and belief," it cannot be read to create
a firm requirement and the tenant's failure to present such facts
does not warrant dismissal of the tenant's challenge to the fair
market rent (Accord: ARL 6666-L; EC 410412 RO). Accordingly, the
Rent Administrator's order was warranted.
BE 410373 RO
THEREFORE, in accordance with 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 410373 RO
DRO Docket No/Order No.: T/A 9493
Tenant(s): Ruth Ann Fredenthal
Owner: Walter Schneider and Edmund Kinyk
Code Section: 2522.3 of Rent Stabilization Code
Premises: 519 East 6th Street, New York, New York, Apt. 8
Order and Opinion Denying Petition
Petition denied on basis fair market rent of subject
apartment was correctly determined.
APPROVED:
Processing Attorney:
Supervising Attorney:
Bureau Chief:
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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