BE 610214-RO

                        STATE OF NEW YORK
                           GERTZ PLAZA
                     92-31 UNION HALL STREET
                     JAMAICA, NEW YORK 11433
APPEAL OF                               DOCKET NO.:
                                        BE 610214-RO
                                        DRO DOCKET NO.:
                        PETITIONER      54556

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
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
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.


                                         Deputy Commissioner

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