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. BF 110252 RO
: DRO DOCKET NO. Q-3120807-T
MARIO TUCCIARONE TENANT: MR. & MRS. THOMAS
MINTERN
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On June 18, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on May
15, 1987, by the Rent Administrator, 10 Columbus Circle, New York,
New York, concerning the housing accommodations known as 191-05
35th Avenue, Flushing, New York, Apartment No. N. 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 March, 1984, by
the filing of a fair market rent adjustment application by the
tenants.
The owner was served with a copy of the tenant's application
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 30,323, the Rent Administrator adjusted
the initial legal regulated rent by establishing a fair market
rent of $410.82 effective January 1, 1983, 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 plus an allowance for
BF 110252 RO
improvements made in the subject apartment just prior to
occupancy by the tenants herein. The Administrator further
determined that excess rent of $8,929.36 had been paid up through
August 31, 1985 when the complaining tenants vacated the subject
apartment and directed the owner to refund such excess rent.
In this petition, the owner contends in substance that he did
submit leases for several similar apartments to the subject
apartment and that these rents should have been considered in
determining the fair market rent. In support of such contention,
the owner submitted copies of leases for three other apartments in
the subject premises.
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
procedure for fair market rent appeal cases filed prior to April
1, 1984 to allow owners to submit June 30, 1974 fair market rental
data for complete lines of apartments, beginning with the subject
line. The average of such comparable rentals will then be updated
by annual guidelines increases. Alternatively,l DHCR procedure
allows owners to have comparability determined on the basis of
rents charged after June 30, 1974. In order to use this method,
owners were required prior to NOvember 1, 1984 to submit rental
history data for all stabilized apartments in the subject premises
and subsequent to November 1, 1984, to submit such data for
complete lines of apartments beginning with the subject line.
Post-June 30, 1974 rent data will be utilized if the comparable
apartment was rented to a first stabilized tenant within one year
of the renting of the subject apartment and if the owner submits
proof of service of an initial legal regulated rent notice (DC-2
Notice) or apartment registration form indicating that the rent is
not subject to challenge.
The record in this case indicates that the owner was afforded
an opportunity in the proceeding before the Rent Administrator to
submit June 30, 1974 and post June 30, 1974 comparability data as
outlined above, but failed to do so despite the owner's contention
on appeal that he did submit copies of leases for other apartments
in the subject premises. The lease information submitted by the
owner for the first time on appeal cannot properly be considered
since this is not a de novo proceeding. Moreover such lease
information even if considered, does not contain the required
comparability data as outlined above. Accordingly, the Rent
Administrator's order was warranted.
BF 110252 RO
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. A copy of
this order is being sent to the tenant currently in occupancy at
the subject apartment.
ISSUED
ELLIOT SANDER
Deputy Commissioner
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ADMINISTRATIVE REVIEW BUREAU
COVERING MEMORANDUM
ARB Docket No.: BF 110252 RO
DRO Docket No/Order No.: Q-3120807-T
Tenant(s): Mr. & Mrs. Thomas Mintern
Owner: Mario Tucciarone
Code Section: 26-513 of Rent Stabilization Law
Premises: 191-05 35th Avenue, Flushing, New York, Apt. N
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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