ADM. REVIEW DOCKET NO.: BG 410132 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
------------------------------------X
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
BG 410132 RO
:
DRO ORDER NO.:
011508
PABLO LLORENTE
Tenant: Jeffrey Marcus
PETITIONER :
------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On July 8, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
June 4, 1987, by the Rent Administrator, 10 Columbus Circle, New
York, New York concerning the housing accommodations known as
Apartment No. 4C at 159 West 80th Street, New York, New York
wherein the Rent Administrator determined the fair market rent
pursuant to the Special Fair Market Rent Guideline Order
promulgated by the New York City Rent Guidelines Board for use in
calculating fair market rent appeals.
The issue in this proceeding is whether the Rent
Administrator's order was warranted.
The applicable sections of the Law are Sections 26-513 and
26-516 of the Rent Stabilization Law.
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 1984 by the
filing of a fair market rent appeal by the tenant who took
occupancy pursuant to a lease which commenced on July 1, 1981 at
a rental of $475.00 per month.
The owner was served with a copy of the tenant's appeal and
afforded an opportunity to submit June 30, 1974 rental data for
comparable apartments or to submit post July 1, 1974
comparability date. The owner was also afforded an opportunity
to submit proof that a DC-1 or DC-2 Notice of Initial Legal
Regulated Rent (hereafter DC-2 Notice) had been served on the
first rent stabilized tenant or a subsequent tenant and the owner
was also directed to submit a complete rental history for the
ADM. REVIEW DOCKET NO.: BG 410132 RO
subject apartment from the date of decontrol from the Rent
Control Law.
In response, the owner did not submit the required
comparability data nor proof of service of the DC-2 notice but
did submit a copy of the Landlord's Report of Statutory Decontrol
showing that the subject apartment first became rent stabilized
on August 1, 1976 and submitted copies of leases for the subject
apartment from March 1, 1980.
In Order Number 011508, the Rent Administrator determined
the initial legal regulated rent by establishing a fair market
rent of $220.25 effective July 1, 1981 and directed the owner to
refund total excess rent of $16,462.92 to the tenant herein-
covering the period from July 1, 1981 to June 30, 1986. The
Administrator determined the fair market rent solely on the basis
of the special fair market rent guidelines order since the owner
did not supply data for a comparability study.
In this petition, the owner contends in substance that the
Rent Administrator did not consider the 1976 Report of Statutory
Decontrol to establish the base date; that the owner was never
afforded the opportunity to submit comparability data and that
the Rent Administrator did not consider the leases of prior
tenants in computing the legal regulated rent.
The Commissioner is of the opinion that this petition should
be granted in part.
Section 26-513 of the Rent Stabilization Code provides in
pertinent part that the tenant of a housing accommodation that
was regulated pursuant to the City Rent and Rehabilitation Law
prior to July 1, 1971 and that became vacant on or after January
1, 1974 may file within ninety days after notice has been
received (DC-2 Notice), an application for adjustment of the
initial legal regulated rent for such housing accommodation (fair
market rent appeal). Section 26-513 further provides that fair
market appeals are to be determined by the use of special fair
market rent guideline 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 Division
policy to allow owners to submit comparability data. In cases
where the owner fails to submit the required comparability data,
the fair market rent is determined solely on the basis of the
special fair market rent guidelines order.
In the instant case, although the tenant herein was not the
first rent stabilized tenant, the owner was still required
pursuant to Section 26-513 to submit proof of service of the DC-2
notice on the first rent stabilized tenant or a tenant
subsequent thereto. The owner did not do so although given an
opportunity to submit such proof. Therefore the tenant herein
was entitled to file a fair market rent appeal.
The record discloses that the owner is correct in his
ADM. REVIEW DOCKET NO.: BG 410132 RO
contention that the Rent Administrator failed to consider the
1976 Report of Statutory Decontrol to establish the initial legal
regulated rent. Pursuant to special Guidelines Order Number 8 in
effect when the first rent stabilized tenant commenced occupancy
on August 1,1976, the 1976 maximum base rent of $159.98 is
adjusted by an additional 15% resulting in a fair market rent of
$183.98 effective August 1, 1976. The owner is also correct in
his contention that the lease of a prior tenant - the lease
commencing March 1, 1980 was not considered. However the owner
failed to submit copies of any leases or rent ledgers from August
1, 1976 to March 1, 1980 so that lawful rent increases, if any,
granted during this period cannot be considered in the
determination of the lawful stabilization rent of the tenant
herein. In addition the record discloses that contrary to the
owner's contention on appeal, the owner was afforded an
opportunity to submit comparability data but did not do so.
Accordingly, the fair market rent must be determined solely on
the basis of Special Guidelines Order Number 8 as discussed
above.
Taking the aforementioned factors into account, the
Commissioner has recalculated the lawful stabilization rents and
the amount of excess rent for the tenant herein. The lawful
stabilization rents and the amount of excess rent are set forth
on the amended rent calculation chart attached hereto and made a
part hereof.
Because this determination concerns lawful rents only
through June 30, 1986, the owner is cautioned to adjust
subsequent rents to an amount no greater than that determined by
this order plus any lawful increases and to register any adjusted
rents with this order and opinion being given as the explanation
for the adjustment.
The owner is directed to roll back the rent to the
stabilized rent consistent with this decision and to refund or
fully credit against future rents over a period not exceeding six
months from the date of receipt of this order, the excess rent
including excess security. In the event the owner does not take
appropriate action to comply within 35 days from the date of
issuance of this order, the tenant may credit the excess rent
collected by the owner against the next month(s) rent until fully
offset.
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 Rent Administrator's order be and the
same hereby is, modified to the extent of redetermining the
lawful stabilization rents and the amount of excess rent
collected by the owner. Accordingly, the stabilization rents and
amount of excess rent are as established on the attached chart
ADM. REVIEW DOCKET NO.: BG 410132 RO
which is fully made a part of this order. The amount of excess
rent through June 30, 1986 is $11,231.31.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
|
