BI 610297-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 S.J.R. NO.: 6038 (Mandamus)
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
BI 610297-RO
3871 VILLAGE COURT ASSOCIATES, RENT ADMINISTRATOR'S
DOCKET NO.:
43765
PETITIONER TENANT: DAVID SEIKEN
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
PART AND REMANDING PROCEEDING TO THE DISTRICT RENT ADMINISTRATOR
On September 29, 1987, the above-named petitioner-owner filed an
Petition for Administrative Review of an order issued on August
31, 1987 by the District Rent Administrator, 10 Columbus Circle,
New York, New York, concerning housing accommodations known as
Apartment 3-J at 3871 Sedgwick Avenue, Bronx, New York, wherein
the District 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.
Subsequent thereto, the petitioner filed a petition in the
Supreme Court pursuant to Article 78 of the Civil Practice Law
and Rules, in the nature of mandamus, for a judgment directing
the Division to render a determination of the petitioner's
administrative appeal.
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.
This proceeding was originally commenced by the tenant by the
filing of an objection to the Apartment Registration including,
among other things, a fair market rent appeal and an overcharge
complaint. The tenant took occupancy pursuant o a lease com-
mencing May 1, 1983 and expiring April 30, 1986 at a monthly rent
of $380.00.
In answer, the owner advised that the prior tenant was the former
owner's daughter; that when the owner took over the building in
March 1982 there were no prior records for the apartment as the
apartment was rent controlled; that the tenant's rent was
established as a first stabilized rent using the Maximum Base
Rent plus all allowances and increase for improvements. The
BI 610297-RO
owner submitted a copy of the applicant's initial lease and
documentation of improvements to the subject apartment.
In the order under appeal herein, the District Rent Administrator
adjusted the initial legal regulated rent by establishing a fair
market rent of $315.05 effective May 1, 1983, the commencement
date of the initial rent stabilized lease and directed the owner
to refund to the tenant excess rent in the amount of $3,514.12.
The fair market rent as established by the Administrator included
an allowance for improvements.
In this petition, the owner asserts that the District Rent Admin
istrator's order states that "the record shows that the statutory
criteria for processing a fair market rent appeal have been met
in this case", but the order fails to set forth the record itself
that establishes specifically how the tenant has met the statu-
tory criteria. The owner also asserts that the only document
submitted by the tenant in support of his appeal is the tenant's
objection form; that in that form the tenant made a general and
unsupported allegation regarding the rent paid by the prior
tenant and indicating that he wished to know how the owner
derived his initial rent; and that this allegation is an insuffi
cient basis for the Administrator's order. The owner further
asserts that the Administrator failed to include a fuel cost
allowance and 10% increase for the tenant's initial three-year
lease in calculating the fair market rent and failed to include a
major capital improvement increase granted under Docket No. BCS
000086-OM effective September 1, 1986 in establishing the lawful
stabilized rent for the tenant's renewal lease commencing May 1,
1986. The owner also cites the range of rents in May 1983 for
two room apartments in another building in the area and asserts
that based on rents charged for substantially similar housing
accommodations in the area, the tenant's initial rent was lawful.
In answer, the tenant asserts, among other things, that the
building cited by the owner for comparability purposes is approx
imately 25 years old and is not comparable to the subject
building which is over 60 years old.
The Commissioner is of the opinion that this petition should be
granted in part.
Section 26-513 of the Rent Stabilization Law provides that a fair
market rent appeal may be filed by a tenant of a housing accommo
dation which was subject to rent control or rent stabilization
prior to July 1, 1971 and became vacant on or after January 1,
1974.
Section 2522.3(c)(2) of the Rent Stabilization Code provides that
a fair market rent appeal should be dismissed if it is filed more
than 90 days after certified mailing to the tenant of an initial
apartment registration form. Section 2522.3(a) of the Co e pro-
vides that where the first tenant taking occupancy after December
31, 1973 of a previously rent controlled apartment was served
with the notice required by Section 26 of the former Rent Stabil
ization Code (Notice Form DC-2), the time within such tenant may
BI 610297-RO
file a fair market rent appeal is limited to 90 days after such
notice was mailed to the tenant by certified mail.
The evidence of record in this case indicates that the tenant was
the first stabilized tenant in the subject apartment. The owner
has not alleged that the tenant's fair market rent appeal was
untimely filed or that the tenant was served with a DC-2 Notice.
DHCR registration records, utilizing information submitted by the
owner, indicate service of the apartment registration form on
June 8, 1984. The tenant filed his objection, in which he
acknowledged receipt of the registration form, on September 4,
1984, within 90 days of service of the registration. Therefore,
the Commissioner finds the Administrator properly determined that
the statutory criteria for filing a fair market rent appeal were
met in this case.
The tenant in his objection form indicated that he was filing a
fair market rent appeal, stated that the prior tenant had told
him that she paid rent of $239.00 per month, and indicated that
he wished to know how the owner had derived his initial rent of
$380.00 per month. It is noted that the obligation to document
the rental history of the subject apartment rests with the owner,
not the tenant. The directive in Section 2522.3(b)(2) of the
Code that a tenant filing a fair market rent appeal provi e sup-
porting facts is qualified by the phrase "to the best of his or
her information and belief." Such directive cannot be read to
create a firm requirement and the tenant's failure to present
such facts does not warrant dismissal of the tenant's fair market
rent appeal (Accord: ARL 6666-L).
Pursuant to Sections 2522.3(e) and (f) of the Rent Stabilization
Code for fair market rent appeals filed after April 1, 1984,
comparability will be determined based on the following:
(e). . . .(1) Legal regulated rents, for which the time
to file a Fair Market Rent Appeal has expired
and no Fair Market Rent Appeal is then
pending, or the Fair Market Rent Appeal has
been finally determined, charged pursuant to
a lease commencing within a 4 year period
prior to, or a one year period subsequent to,
the commencement date of the initial lease
for the housing accommodation involved; and
(2) At the owner's option, market rents in
effect for other comparable housi g accommda-
tions on the date of the initial lease for
the housing accommodation involved as sub-
mitted by the owner.
(f) Where the rents of the comparable housing
accommodations being considered are legal
regulated rent, for which the time to file a
Fair Market Rent Appeal has expired, and such
rents are charged pursuant to a lease ending
BI 610297-RO
more than 1 year prior to the commencement
date of the initial lease for the subject
housing accommodation, such rents shall be
updated by guidelines increases for 1 year
renewal leases, commencing with the expira-
tion of the initial lease for the comparable
housing accommodation to a date within 12
months prior to the renting of the housing
accommodation involved.
The record in this case indicates that the owner was served with
a copy of the tenant's objection. However, the owner was not
afforded an opportunity to submit comparability data pursuant to
the requirements of the current Rent Stabilization Cod . There-
fore the Commissioner finds that the proceeding should be
remanded to the Administrator for further processing in order to
afford the owner an opportunity to submit comparability data
pursuant to the requirements of the Rent Stabilization Code
effective May 1, 1987.
The Commissioner further finds that the Administrator failed to
include the fuel cost allowance in calculating the fair market
rent and failed to include the major capital improvement increase
granted under Docket No. BCS 000086-OM effective September 1,
1986. These amounts, as well as the increase for improvements
previously allowed by the Administrator, should be included in
the Administrator's calculations. The Commissioner further finds
that the additional 10% increase claimed by the owner for the
tenant's initial three year lease derives from the standard
guidelines applicable to leases for previously stabilized apart-
ments and does not apply to the determination of the fair market
rent for previously rent controlled apartments, which is based on
the special fair market rent guidelines. Therefore such increase
should not be included by the Administrator in calculating the
fair market rent for the subject apartment.
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 proceeding be, and the same hereby is, remanded
to the District Rent Administrator for further processing in
accordance with this Order and Opinion. The automatic stay of
so much of the District Rent Administrator's order as directed a
refund is hereby continued until a new order is issued upon
remand. However, the Administrator's determination as to the
rent is not stayed and shall remain in effect, except for any
adjustments pursuant to lease renewals, until the Administrator
issues a new Order upon remand.
ISSUED:
BI 610297-RO
JOSEPH A D'AGOSTA
Deputy Commissioner
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