BH 110124 RT
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.: BH 110124 RT
DRO DOCKET NO.: TA 9732
LINDA APPELBAUM, CDR 30,917
TENANT: LINDA APPELBAUM
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 17, 1987, the above-named petitioner-tenant filed a
Petition for Administrative Review against an order issued on July
17, 1987 by the Rent Administrator, 10 Columbus Circle New York New
York, concerning the housing accommodations known as 72-38 113th
Street Queens, New York, Apartment No. 2C 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 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
otherwise indicated, reference to Sections of the Rent
Stabilization Code (Code) contained herein are to the Code in
effect on April 30, 1987.
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 June 1981 by the filing
of a fair market rent adjustment application by the tenant who took
occupancy of the subject apartment on March 1, 1981 at a rental of
$450.00 per month.
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,
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1974 comparability data for determining the fair market rent of the
subject apartment and to submit proof of any improvements made in
the subject apartment.
In response, the owner stated in substance that due to new
equipment installed in the subject apartment it was entitled to
charge a fair market rent of $450.00. As comparables, the owner
cited updated rents for apartment 6J and submitted proof of service
of the Initial Legal Regulated Rent Notice (hereafter DC-2 Notice)
with respect to the above cited apartment. The owner also
submitted bills and cancelled checks showing it made expenditures
totalling $1,889.36 in the subject apartment immediately prior to
occupancy by the tenant herein.
In Order Number CDR 30,917, the Rent Administrator dismissed the
tenant's Fair Market Application by establishing that the tenant's
initial rent of $450.00 did not exceed the fair market rent charged
to the tenant. The Rent Administrator considered both the owner's
improvements at 1/40th of the total costs, as well as averaging the
rent of comparable Apt. 6J in establishing the Fair Rent of the
subject apartment.
In this petition, the tenant contends in substance that the rent
Administrator miscalculated the Fair Market Rent by averaging the
comparable rent of Apt. 6J ($500.00) with the Fair Market rent of
the subject apartment $(308.81) exclusive of improvements ($47.23)
and adding the improvements to the averaged rent resulting in the
dismissal of the tenant's Fair Market Application.
The tenant contends that the amount of the improvements should have
been added to the Fair Market Rent of the subject apartment prior
to averaging with the comparable rent of apartment 6J which would
result in a fair market rent of $428.02 and an adjustment of the
initial rent charged by the owner.
In answer to the tenant's petition, the owner stated in substance
that the Rent Administrator's application of the second statutory
criteria has been upheld by the courts and the order was correct as
issued.
The Commissioner is of the opinion that this petition should be
denied.
An examination of the records in this case discloses that there was
no irregularity in the method of calculating the fair market rent
for the subject apartment. The Rent Administrator correctly
utilized the standard formula in averaging the rent of the
comparable apartment with the rent based on the special guideline
prior to adding the increase for new equipment.
There is no requirement that any rent increase due to apartment
improvements should be subtracted from the rent of a comparable
apartment before rent averaging.
Accordingly, the Rent Administrator's order was warranted.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
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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.
ISSUED
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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