DOCKET NO. BH-410267-RO/BI-4100026-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. BH-410267-RO AND
: BI-410002-RO
BLARE MANAGEMENT CORPORATION AND :
FORT TRYON MANAGEMENT COMPANY, : D.R.O. DOCKET NO. TA 12391
:
:
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
DOCKET NUMBER BH 410267-RO IN PART AND DENYING
PETITION FOR ADMINISTRATIVE REVIEW DOCKET NUMBER BI410002-RO
On August 20, 1987 and August 27, 1987, the above-nam d petitioner-
owner and petitioner's - prior owner, respectively, filed a
Petitions for Administrative Review of an order issued on July 24,
1987, by the District Rent Administrator, 10 Columbus Circle,
New York, New York, concerning housing accommodations known as
Apartment 6-F at 120 Bennett Avenue, New York, New York wherein the
District Rent Administrator determined the fair market rent pursuant
to a comparability study and 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
provision 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 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 appeals.
This proceeding was originally commenced by the filing of a
fair market rent appeal application by the tenant with the
New York City Conciliation and Appeals Board, one of the
predecessor agencies to the DHCR. The tenant took occupancy
pursuant to a lease commencing December 20, 1981 and expiring
December 31, 1982 at a monthly rent of $450.00.
DOCKET NO. BH-410267-RO/BI-4100026-RO
In Order Number CDR40,818, the District Rent Administrator
adjusted the initial legal regulated rent by establishing a fair
market rent of $438.81 effective December 20, 1981, the
commencement date of the initial rent stabilized lease, and
directed refund to the tenant of excess rent in the amount of
$844.20.
In its petition (BH410267 RO), the owner (Sativel Washington
Heights Association) through its managing agent (Blare Management
Corporation) contends that the District Rent Administrator failed
to include the fuel cost allowance in the application of Special
Fair Market Rent Guideline 13. The owner also asserts that it
took title as of January 1, 1987 and that Blare Management
Corporation became the new managing agent as of that date. The
owner requests apportionment of the overcharge.
In its petition (BI410002 RO), the prior owner (Fort Tryon
Management Company) asserts that an increase is warranted for a
new combination sink and tub which was installed in the subject
apartment at the time the tenant rented the apartment. The prior
owner submits a bill for this item.
In answer to the petitions, the tenant asserts that her lease
contained no mention of increases for appliances, that the sink
was installed prior to the signing of her lease and that she is
not responsible for it. The tenant also asserts that treble
damages should be imposed.
The Commissioner is of the opinion that the petition filed under
Docket Number BH410267 RO) should be grant in part and the
petition filed under Docket Number BH410002 RO should be denied.
Pursuant to Special Fair Market Rent Guideline 13, applicable to
leases commencing between October 1, 1981 and September 30, 1982,
the fair market rent is determined based on the 1980 Maximum Base
Rent increased by 20 percent. The fuel cost allowance is not
included. Therefore, this portion of the owner's petition is
denied.
Section 20c(1) of the Code provides that where there has been an
installation of new equipment in a stabilized apartment, the
monthly stabilization rent for said unit may be increased by
1/40th the cost of such equipment provided the tenant then in
occupancy has consented thereto in writing. In addition, the
courts have ruled that an increase for new equipment installed
during a vacancy prior to the commencement of a new tenancy or
upon the commencement of a new tenancy and reflected in the lease
rent, may be collected without the new tenant's consent to pay
such increase (Matter of LeHavre Corp. v. Gribetz, et. al.,
N.Y.L.J., January 20, 1971, p. 19, col. 8 (Sup. Ct., Queens Co.,
Crisona, J.); Matter of Morton I. Hamberg v. CAB, N.Y.L.J.,
November 9, 1972, p. 18. col. 8, Sup. ct., N.Y Co., Sarafite, J.).
Section 2529.6 of the Rent Stabilization Code effective May 1,
1987 provides that review pursuant to an administrative appeal
DOCKET NO. BH-410267-RO/BI-4100026-RO
shall be limited to facts or evidence before a Rent Administrator
as raised in the petition. Where the petitioner submits with the
petition certain facts or evidence which he or she establishes
could not reasonably have been offered or included in the
proceeding prior to the issuance of the order being appealed, the
proceeding may be remanded for determination to the Rent
Administrator to consider such facts or evidence.
Sections of the current Code dealing with procedural matters,
including the above-cited Section 2529.6, are applicable to all
PARS, whether filed before or after April 1, 1984.
In this case, the prior owner asserts that it was entitled to a
rent increase for a new combination sink and tub and submits
documentation of such improvements for the first time on
administrative appeal.
The record indicates that the prior owner failed to submit
documentation of any improvements during the proceeding before the
Administrator. The prior owner offers no explanation for its
failure to submit such documentation to the Administrator.
Therefore, the Commissioner finds that the claimed rent increase
is not warranted.
It is the DHCR's policy for fair market rent appeal cases that an
owner will be held responsible only for its own portion of the
excess rent in the absence of evidence of any collusion between
the present owner and the former owner.
The prior owner (Fort Tryon Management Company) is directed to
refund to the tenant $739.24 representing excess rent for the
period from December 20, 1981 to December 31, 1986. This order is
issued without prejudice to the tenant's rights, if any, to
proceed against the former owner in a Court of competent
jurisdiction.
The owner (Sativel Washington Heights, c/o Blare Management
Corporation) is directed to refund to the tenant $104.96
representing excess rent for the period from January 1, 1987 to
July 31, 1987 plus excess security.
Regarding the tenant's assertion that treble damages should be
imposed, the Commissioner notes that since the tenant failed to
raise this issue affirmatively in a tenant's petition for
administrative review the raising of this issue in answer to the
owner's petition cannot operate as a proper challenge to the
order. However, the Commissioner notes that treble damages are
not imposed in fair market rent appeal cases (Accord: ART 2020-L
and ARL 2023-L). It is noted that the tenant filed petition for
administrative review under Docket Number BH410282 RT which was
dismissed for failure to raise any specific objections to
Administrator's Order.
DOCKET NO. BH-410267-RO/BI-4100026-RO
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that petition for administrative review Docket Number
BH 410267-RO be and the same hereby is granted in part, that
petition for administrative review Docket Number BI 410002 RO be,
and the same hereby is denied, and that the District
Administrator's order be, and the same hereby is modified to the
extent hereinabove indicated.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
ADMINISTRATIVE REVIEW BUREAU
COVERING MEMORANDUM
ARB Docket No.: DOCKET NO. BH-410267-RO/BI-410002-RO
DRO Docket No/Order No.: TA 12391
Tenant(s): ALICE GOTTLIEB
Owner: BLARE MANAGEMENT CORPORATION AND FORT TRYON MANAGEMENT
COMPANY
Code Section:
Premises: 120 BENNETT AVENUE, NEW YORK, NY, APARTMENT 6-F
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
DOCKET NUMBER BH 410267-RO IN PART AND DENYING
PETITION FOR ADMINISTRATIVE REVIEW DOCKET NUMBER BI410002-RO
1) Fuel cost allowance is not included in Special
Fair Market Guideline 13.
2) Prior owner may not submit Section 20 c(1)
documentation for the first time on PAR.
3) Excess rent is allocated between prior owner
and current owner.
APPROVED:
Processing Attorney:
Supervising Attorney:
Bureau Chief:
Deputy Counsel:
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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