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.: BF 110276-RO
:
DRO DOCKET NO.: 36764
SAUL MILLER
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW AND
REMANDING PROCEEDING TO THE DISTRICT RENT ADMINISTRATOR
On June 12, 1987, the above-named petitioner-owner filed a Petition for
Administrative Review of an order issued on May 26, 1987 by the District
Rent Administrator, 10 Columbus Circle, New York, New York concerning
housing accommodations known as Apartment 5D, 67-70 Yellowstone Blvd,
Forest Hills, 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 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 filing of a fair market
rent appeal by the tenant. The tenant took occupancy pursuant to a lease
commencing September 1, 1984 and expiring August 31, 1986 at a monthly
rent of $725.00.
The tenant advised during the proceeding before the Administrator that he
had vacated 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
$471.03 effective September 1, 1984, the commencement date of the initial
rent stabilized lease, and directed the owner to refund excess rent in the
amounts of $6,349.25. The Administrator stated that the owner had
submitted comparable rents, but did not use any of the data in a
comparability study.
In this petition, the owner contends that it submitted to the
Administrator rent records for the entire building from 1974. The owner
alleges that the D and Y lines of apartments should be used for
comparability purposes. The owner states that it previously submitted
bills and checks for new equipment and that it is resubmitting the
documentation with its petition.
DOCKET NUMBER: BF 110216-RO
The owner also asserts that Guideline 16, which is utilized in the
Administrator's order, calls for 20% above the Maximum Base Rent (MBR),
plus 7 and 1/2% vacancy allowance, plus 9% for a 2 year lease.
In answer, the tenant states that a new refrigerator was installed in the
subject apartment, but that the owner has submitted invoices for two
refrigerators, one of which is for a different apartment. The tenant also
requests that treble damages be awarded.
The Commissioner is of the opinion that this petition should be granted.
Pursuant to Sections 2522.3(e) and 9f) the Rent Stabilization Code
effective May 1, 1987, for fair market rent appeals filed after April 1,
19884, 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 housing
accommodations on the date of the initial lease
for the housing accommodation involved as
submitted by the owner
(f) Where the rents of the comparable housing
accommodations being considered are legal
regulated rents, for which the time to file a
Fair Market Rent Appeal has expired, and such
rents are charged pursuant to a lease ending
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 expiration
of the initial lease for the comparable
housing accommodations to a date within 12
months prior to the renting of the housing
accommodations involved.
The Commissioner finds that in this case the owner was not afforded an
opportunity to submit comparability data pursuant to the requirements of
the current Rent Stabilization Code. Therefore, 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 current code. It
is noted that the owner failed to submit with its comparability submission
proof of service of a DC-2 notice or apartment registration form for the
comparable apartments.
DOCKET NUMBER: BF 110216-RO
The owner alleges that it submitted documentation of improvements to the
subject apartment to the Administrator. The tenant acknowledges
installation of a refrigerator, but challenges a second invoice for a
refrigerator which is for a different apartment. On remand, the
Administrator should consider the documentation of improvements submitted
by the owner, except for the invoice for a refrigerator which does not
apply to the subject apartment.
The Commissioner further finds that the Administrator incorrectly utilized
Special Fair Market Rent Guideline Number 16 instead of Special Guideline
15 in this case. Special Guideline 16 applies to first stabilized
tenancies commencing between October 1, 1984 and September 31, 1985. In
this case, the applicant's initial lease commenced September 1, 1984, and
the appropriate guideline is Special Guideline 15, applicable to first
stabilized tenancies commencing between October 1, 1983 and September 30,
1984. Pursuant to Special Guideline 15, the sum of the 1982 MBR and the
fuel cost adjustment is increased by 20%. The vacancy allowance and
standard guideline increase are applicable to previously stabilized
apartments and are not included in the special guideline utilized to
establish first stabilized rents. On remand, the Administrator should
recalculate the special guideline portion of the fair market rent
calculation based on Special Guideline 15.
Regarding the tenant's request that treble damages be imposed, the
Commissioner finds that since the tenant failed to raise this issue
affirmatively by timely filing a petition for administrative review, the
raising of this issue in an answer to the owner's petition cannot operate
as a proper challenge to the Administrator's order. However, it is noted
that treble damages are not awarded in fair market rent appeal cases.
(Accord: ART 2020-L and ARL 2023-L).
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that this petition be and the same hereby is granted to the
extent of remanding this proceeding 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 of the rent is not
stayed and shall remain in full force and effect, except for any
adjustments pursuant to lease renewals, until the Administrator issues a
new order upon remand. A copy of this order and opinion is being sent to
the current occupant of the subject apartment.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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