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. BJ 430389-RO
MAX OSTROW, : DRO DOCKET NO.
PETITIONER : U 3124275-RT
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 5, 1987, the above-named petitioner-owner filed a Petition
for Administrative Review of an order issued on September 8, 1987 by
the District Rent Administrator, 10 Columbus Circle, New York, New
York, concerning housing accommodations known as Apartment 6D at 10
Bennett Avenue, New York, 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.
The Commissioner has reviewed all 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 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 January
12, 1984 and expiring January 11, 1985 at a monthly rent of $399.87.
In Order Number CDR 31,352, the District Rent Administrator adjusted
the initial legal regulated rent by establishing a fair market rent of
$344.26 effective January 12, 1984, the commencement date of the
initial rent stabilized lease, and directed the owner to refund excess
rent in the amount of $2,692.77 to the tenant.
In this petition, the owner contends that he submitted full and timely
responses to all requests for information from the DHCR. The owner
submits copies of answers submitted to the Administrator and
certificates of mailing. In these answers the owner cited apartment 5A
DOC. NO.: BJ 430389-RO
as a comparable apartment, included the lease for that apartment, and
also asserted that comparable apartments in the area at the time
of the tenant's rental were being rented in the $550.00 per month
range, which could be confirmed by DHCR registration records. The
owner also submits with his petition copies of New York Times
classified real estate listings for the period when the applicant took
occupancy. Based on the comparable apartment in the building and rents
for comparable apartments in the area, the owner asserts that the
tenant's initial rent was lawful.
In answer to this petition, the tenant asserts that there is no basis
to challenge the Administrator's order.
The Commissioner is of the opinion that this petition should be denied.
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 fair market rent guidelines orders
promulgated by the New York City 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
DHCR's procedure for fair market rent appeal cases 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
guidelines 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 that the rent is not
subject to challenge.
The record in this case indicates that the owner was afforded an
opportunity by notice dated March 14, 1986 to submit June 30, 1974 or
post-June 30, 1974 comparability data as outlined above. The owner
failed to submit adequate data, including data for complete lines of
apartments beginning with the subject line and proof of service of DC-2
notices or apartment registration forms. In addition, the classified
real estate listings submitted by the owner reflect rents being asked
at the time and do not constitute adequate documentation of rents being
charged.
Although the owner requested that rents for comparable apartments in
the area be obtained from DHCR's registration records, the owner is
DOC. NO.: BJ 430389-RO
required to submit the comparability data which the owner wishes to
have considered in the comparability study. Court precedent has held
that comparability in fair market rent appeal cases must be based on
individualized comparability studies and that where no comparability
data is available, the fair market rent may be determined based on the
special fair market rent guidelines alone. The DHCR is not obligated
to search its records for usable comparability data, which might not be
available in every case. If an owner wishes to exercise the option of
having the comparability data considered in the determination of the
fair market rent, the burden is on the owner to submit such data,
including leases or other rental documentation, as well as proof of
service of DC-2 notices or apartment registration forms, which is not
available from DHCR records.
The Commissioner therefore finds that the Administrator properly
determined the fair market rent using the special fair market rent
guideline alone and that the owner's petition should be denied.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it
is
ORDERED, that this petition be and the same hereby is denied and the
District Rent Administrator's order be and the same hereby is affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
ADMINISTRATIVE REVIEW BUREAU
COVERING MEMORANDUM
ARB Docket No.: BJ 430389-RO
DRO Docket No/Order No.: U 3124275-RT
Tenant(s): Emelia Seubert
Owner: Max Ostrow
Code Section:
Premises: 10 Bennett Ave., New York, N.Y.
Apt. 6D
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
District Rent Administrator properly determined the fair market rent
based on the special guideline alone where the owner failed to submit
adequate comparability data. The DHCR is not obligated to search its
registration records for usable comparability data.
APPROVED:
Processing Attorney:
Supervising Attorney:
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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