BE 610214-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 NO.:
BE 610214-RO
C.Q. REALTY INCORPORATED,
DRO DOCKET NO.:
PETITIONER 54556
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND REMANDING PROCEEDING TO
THE DISTRICT RENT ADMINISTRATOR
On May 21, 1987, the above named petitioner-owner filed a
Peti-tion for Administrative Review against an order issued on
May 6, 1987, by the District Rent Administrator concerning
housing accommodations known as Apartment 2-J at 2156 Cruger
Avenue, Bronx, New York, wherein the District Rent Administrator
deter-mined the fair market rent guideline promulgated by the New
York City Rent Guidelines Board for use in calculating fair
market rent appeals.
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant
to the issues raised by the administrative appeal.
This proceeding was originally commenced by the filing of a
ten-ant's objection form by the tenant including a fair rent
appeal.
The tenant took occupancy pursuant to a one-year lease commencing
November 1, 1984 and expiring October 31, 1985 at a monthly rent
of $523.41.
In answer submitted December 22, 1986, the owner stated that the
tenant was the first stabilized tenant to occupy the subject
apartment. The owner submitted a Landlord's Report of Statutory
Decontrol (Form R-42) which indicated that the apartment became
vacant on October 31, 1984 and was rented on November 1, 1984.
The owner stated that the tenant's rent had been determined by
increasing the rent controlled rent by 33.5% (20% plus 13.5%).
The owner also stated that there were numerous 5 room apartments
in the same area renting for close to or more than the subject
apartment. The owner cited rents for another apartment in the
subject line and for 2 apartments in a neighboring building.
By subsequent correspondence dated April 7, 1987, the owner
asserted that the apartment was rented a few days prior to the
renting to the applicant to one Edwin Toledo.
In the order under appeal herein, the District Rent
Adminis-trator adjusted the initial legal regulated rent by
establishing a fair market rent of $450.86 effective November 1,
1984, the commencement date of the initial rent stabilized lease.
The Administrator directed the owner to refund excess rent in the
amount of 2,416.04 to the tenant.
In this petition, the owner contends that the tenant herein has
no standing to file a fair market rent appeal, that there was a
prior tenant who had the right to file an appeal, and that the
fact that the prior tenant paid the same rent as the applicant is
not relevant. The owner states that he submitted a copy of a
lease for the prior tenant. The owner also objects to the
Admin-istrator's failure to use comparability in determining the
tenant's fair market rent. The owner submits with its petition
copies of apartment registration forms for other apartments in
the building. The owner also objects to the Administrator's
failure to include a vacancy and guideline increase in applying
the special fair market rent guideline.
In answer to the petition, the tenant asserts, among other
things, that he has standing to file a fair market rent appeal
and that, upon information and belief, the prior tenant in the
subject apartment was a rent controlled tenant.
The Commissioner is of the opinion that this petition should be
granted in part.
Section 26-513 of the Rent Stabilization Law provides that a fair
market rent appeal may be filed by a tenant of a housing
accommo-dation which was subject to rent control or rent
stabilization prior to July 1, 1971 and became vacant on or after
January 1, 1974.
Section 2521.1 (a)(1) of the Rent Stabilization Code provides
that for housing accommodations which were subject to rent con-
trol on March 31, 1984 and vacated thereafter, the initial legal
registered rent shall be the rent agreed to by the parties
subject to the tenant's right to file a fair market rent appeal
pursuant to Section 2522.3 of the Code. Section 2522.3(a) pro-
vides that a fair market rent appeal may be filed by the tenant
of a housing accommodation which was subject to rent control on
December 31, 1973.
The Commissioner finds that the owner's assertion that a prior
stabilized tenant occupied the subject apartment is completely
undocumented and is disproved by the evidence including the
Landlord's Report of Statutory Decontrol. This document has the
name Edwin Toledo typed in as the tenant's name, Toledo is
crossed out and Torres is handwritten in. There is no evidence
that Edwin Toledo was even a tenant of the subject apartment. The
record does not contain a lease for the alleged prior tenant, as
claimed by the owner. All leases and rental documents submitted
refer to the applicant Edwin Torres as the tenant and are signed
by Edwin Torres. The Commissioner therefore finds that the
applicant was the first stabilized tenant to occupy the subject
apartment after rent control and that the tenant had the right to
challenge his initial rent by filing a fair market rent appeal.
Pursuant to Sections 2522.3(e) and (f) the Rent Stabilization
Code effective May 1, 1987, for fair market rent appeals filed
after April 1, 1984, comparability will be determined based on
the following:
(e)(1) Legal regulated rents, for which the time
to file a Fair Market Rent Appeal has expired and
no Fair Market Rent Appeal is then pending, or the
Fair Market Rent Appeal has been finally deter-
mined, charged pursuant to a lease commencing
within a four year period prior to, or a one year
period subsequent to, the commencement date of the
initial lease for the housing accommodation in-
volved; and
(2) At the owner's option, market rents in effect
for other comparable housing accommodations on the
date of the initial lease for the housing
accommo-dation involved as submitted by the owner.
(f)Where the rents of the comparable housing
accommo-dations being considered are legal
regulated rents, for which the time to file a Fair
Market Rent Appeal has expired, and such rents are
charged pursuant to a lease ending more than 1
year prior to the commencement date of the initial
lease for the subject housing accommodation, such
rents shall be updated by guidelines increases for
one-year renewal leases, commencing with the ex-
piration of the initial lease for the comparable
housing accommodation to a date within 12 months
prior to the renting of the housing accommodation
involved.
The record in this case indicates that the owner was not afforded
an opportunity to submit comparability data pursuant to the
re-quirements of the current Rent Stabilization Code. Therefore,
the Commissioner finds that the proceeding should be remanded to
the Administrator for further processing in order to afford the
owner an opportunity to submit comparability data pursuant to the
requirements of the current Code.
Regarding the owner's objection to the Administrator's failure to
include a vacancy and guideline increase in applying the special
fair market rent guideline, the Commissioner finds that vacancy
and standard guideline increases apply to previously stabilized
apartments and that such increases are not included in deter-
mining the initial stabilized rent for apartments previously
subject to rent control pursuant to the special fair market rent
guideline. The Administrator properly applied the appropriate
special guideline in this case which was the 1984 Maximum Base
Rent increased by 15% pursuant to Special Guidelines Order Number
16. Therefore, this portion of the owner's petition is denied.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is, granted
in part, and the proceeding be, and the same hereby is, remanded
to the District Administrator for further processing in accord-
ance 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:
ELLIOT SANDER
Deputy Commissioner
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