BG 410278-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.:
BG 410278-RO
ABRAHAM CHINITZ, D.R.O. NO.:
CDR 30,549
TENANT :
PETITIONER BRUCE MC INNES
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On July 10, 1987 the above-named petitioner-owner filed a Peti-
tion for Administrative Review against an order issued on June
12, 1987, by the Rent Administrator, 10 Columbus Circle,
New York, New York, concerning the housing accommodations known
as Apartment 3-B, 466 Amsterdam Avenue, New York, New York
wherein the Rent Administrator determined that the tenant's rent
exceeded the fair market rent and ordered a refund of $9,984.48
of excess rent and excess security.
The Commissioner notes that this proceeding was initiated 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 other
wise indicated, reference to Sections of the Rent Stabilization
Code (Code) contained herein are to the Code in effect on April
30, 1987.
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.
The tenant commenced this proceeding on March 31, 1984 by filing
a Fair Market Rent Appeal (FMRA) with the New York City Concilia
tion and Appeals Board (CAB), the agency formerly charged with
enforcing the Rent Stabilization Law.
In answer to the complaint, the owner submitted data regarding
comparable rents in the subject line of apartments.
In Order No. CDR 30,549, the Rent Administrator determined that
the average rent of such comparable apartments as of June 30,
1979 was $300.00 per month. (As the petitioner notes, the Admin
istrator's order stated "1974" but it is conceded that "1979" was
the correct and intended date.) Using the Special Guidelines
Test, the Administrator found a Fair Market Rent of $233.14.
BG 410278-RO
Taking the average of these two results, the Administrator
established the fair market rent as $266.57, plus $13.06 (being
one-fortieth of the cost of certain improvements) for a total of
$279.63. Based therein the refund stated above was computed.
In this petition, the owner contends th t the Rent Administra-
tor's Order is incorrect and should be modified because the
tenant failed to submit any facts or evidence in support of his
FMRA, so that the tenant's application amounted to a "fishing
expedition." In support of this contention the owner cites the
Rent Stabilization Law which states, in part, that a tenant
filing a FMRA "need only allege that such rent is in excess of
the fair market rent and shall present such facts which, to the
best of his information and belief, support such allegation."
In addition, the owner cites Section 25 of the former Code which
states that such tenant need only allege:
"(1) that the Initial Legal Regulated Rent is in ex-
cess of the fair market Rent; and
(2) such facts which, to the best of his information
and belief, support such allegation."
Moreover, the owner cites Section 12 of the application form used
by the tenant which states in part: "To support your claim ...
you should list facts on which you rely, such as ..." Th s sec-
tion was left blank by the tenant.
Finally, the owner cites Notice Form DC-2A (9/85) which states,
in part:
"The tenant must allege that the initial Leg l Reg-
ulated Rent is in excess of the Fair Market Rent
for the apartment and present facts which, to the
best of the tenant's information a d belief, sup-
port such allegation."
The owner then argues that, even if the Commissioner finds that
the tenant's FMRA was properly filed, the Administrator's order
must be modified because the Administrator failed to update the
June 30, 1979 average comparable rent of $300.00 in order to
determine the fair market rent for the tenant's initial lease,
which commenced April 15, 1980.
In answer to this petition, the tenant contends that the order
should be upheld because the tenant compli d with all require-
ments for a FMRA by alleging his initial rent exceeded the fair
market rent.
The Commissioner is of the opinion that this petition should be
denied.
Three of the four documents cited by the owner contain the phrase
"to the best of the tenant's information and belief" (or an
equivalent statement). Based thereon the Commissioner has consis
BG 410278-RO
tently held that a tenant is not required to submit information
to support his or her belief that the initial stabilized rent
exceeded the market value. See Administrative Review Docket
Nos. ARL 06666-L and AL 410310-RO.
The fourth document cited by the owner, i.e., the application
form used by the tenant, clearly does not obligate the tenant to
submit evidence. The phrase relied on by the owner, i.e., "[t]o
support your claim . . . you should list facts on which you
rely", is permissive rather than mandatory. Furthermore, the
instructions on the face of this form state explicitly: "You may
file this application . . . if you believe your rent exceeds the
Fair Market Rent for your apartment . . . ." (Emphasis added.)
There is clearly no requirement for a tenant to submit evidence
in support of this claim.
Regarding the owner's contention that the June 30, 1979 average
comparable rent should have been updated, the Commissioner notes
that 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 fa r market rent guide-
lines 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 deter
mine rents generally prevailing in t e same area for substan-
tially similar housing accommodations, it is DHCR's procedure for
fair market rent appeal cases, such as the present proceeding,
which are filed prior to April 1, 1984 to allow owners to submit
June 30, 1974 free 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 guideline
increases. Alternatively, 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 the rent is not subject to
challenge.
In this case the owner elected to use post-June 30, 19 4 compar-
ables. Since the June 30, 1979 average comparable rent used by
the Administrator was within one year of the commencement date of
the initial stabilized lease (April 15, 1980), the Administrator
fully complied with the procedures described above. Accordingly,
the owner's argument that updating was required is without merit.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is,
BG 410278-RO
ORDERED, that this petition be, and the same hereby is, denied
and that the Rent Administrator's order be, and the same hereby
is, affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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