BH130260RO

                                  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 
          IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO. BH130260RO
                                              :  DRO DOCKET NO.Q3121481RT
               BRIGHTON PROPERTIES               TENANT: R. & A. ROMEO

                                PETITIONER    : 
          ------------------------------------X                             
           ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN 
          PART


               On August 18, 1987, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on July 
          24, 1987, by the Rent Administrator, 10 Columbus Circle, New York, 
          New York, concerning the housing accommodations known as 70-11 108th 
          Street, Queens, New York, Apartment No. 4F, wherein the Rent 
          Administrator determined the fair market rent pursuant to an 
          apartment 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 filed 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 25 of the Rent Stabilization Code.

               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 March, 1984 by the 
          tenants' filing of a fair market rent adjustment application and a 
          rent overcharge complaint.  The tenants stated that they first moved 
          to the subject apartment on October 1, 1983 at a rental of $625.00 
          per month.

               In response to the tenants' complaints, the owner stated that 
          the subject apartment was rent controlled immediately prior to 
          occupancy by the tenants herein.









          BH130260RO




               The owner was served with a fair market rent answer package and 
          afforded an opportunity to submit June 30, 1974 or post June 30, 
          1974 comparability data for determining the fair market rent of the 
          subject apartment.  The owner was also informed that if the lease in 
          effect on June 30, 1974 for a comparable apartment was a vacancy 
          lease which began on or after January 1, 1974 proof of service on a 
          DC-1 Notice (Notice of Initial Legal Regulated Rent ) on the vacancy 
          tenant was required.

               In answer, the owner indicated that apartments 3E, 6J, 2A, 5A, 
          5M, 2E, 6E, 3A, and 6L were not subject to rent control on June 30, 
          1974, and submitted June 30, 1974 rental data for the apartments in 
          the subject "F" line as well as for the E, H. I, J, A, B, L, and M 
          lines.  The owner submitted Reports of Statutory Decontrol for eight 
          of the nine apartments not subject to rent control on June 30, 1974, 
          but did not submit DC-1 Notices for any of the apartments.  The 
          owner also submitted a copy of the Forest Hills New York Times 
          classified adds for June 30, 1974 showing what the owner considered 
          comparable apartments. 

               In Order Number Q3121481RT, the Rent Administrator adjusted the 
          initial legal regulated rent by establishing a fair market rent of 
          $447.12 effective October 1, 1983.  The fair market rent was 
          determined on the basis of the special fair market rent guideline 
          plus the average of the comparable apartments 3E, 6J, 2A, 5A, and 
          5M.  In addition a $22.11 rent increase for improvements was 
          allowed.  Apartments 2E, 6E, 3A, and 6L were excluded from the 
          comparability study because the owner had not submitted the required 
          proof of service of the DC-1 Notice.  In addition, the Rent 
          Administrator found that the tenant had paid excess rent totalling 
          $8,626.47 and directed the owner to refund such excess rent to the 
          tenant.

               In this petition, the owner alleges in substance that the 
          subject apartment is more desirable than some of the comparables 
          used because it is a front apartment and consideration should have 
          been given to this factor; that apartments 2E, 6E, 3A and 6L should 
          not have been rejected as comparables since the owner submitted 
          Reports of Statutory Decontrol for such apartments; that the New 
          York Times classified listings submitted by the owner should have 
          been taken into account in determining the fair market rent; and 
          that consideration should have been given to an affidavit submitted 
          by a local leasing corporation representative to the effect that the 
          amount charged the tenant herein was a fair rent.

               The Commissioner is of the opinion that this petition should be 
          granted in part.

               Section 25 of the Rent Stabilization Code provides in pertinent 
          part that a fair market rent appeal may be filed by the tenant of a 
          dwelling unit which was subject to the City Rent Law prior to July 






          BH130260RO

          1, 1971 and was vacated between January 1, 1974 and June 30, 1974, 
          both dates inclusive.

               Section 26 of the Rent Stabilization Code provides in pertinent 
          part that all tenants who are entitled to file a fair market rent 
          appeal pursuant to Section 25 shall be entitled to receive notice of 
          such rent together with a statement as to the right of appeal.  Such 
          notice shall be served by the owner upon every such tenant by 
          certified mail.

               In the instant case, the Reports of Statutory Decontrol 
          disclose that apartments 3A and 6E became vacant in November, 1973 
          and were not rerented until January, 1974.  Accordingly, these 
          apartments do not meet the criteria for the filing of fair market 
          rent appeals pursuant to Section 25 since they were not vacated 
          between January 1, 1974 and June 30, 1974.  Therefore the owner was 
          not required to serve  DC-1 Notices and these apartments should have 
          been considered in the comparability study.  As to apartments 2E and 
          6L, utilizing the June 30, 1974 rents for those apartments will 
          result in a lower average comparable rent so that these apartments 
          also should have been included in the comparability study.  The 
          inclusion of these additional four apartments in the comparability 
          study makes the average rent of the comparable apartments on June 
          30, 1974 $215.97 rather than $214.60 as determined by the Rent 
          Administrator.  This figure has been updated by annual guideline 
          increases up to the date of the tenant's initial lease term plus a 
          full allowance for the tenant's initial lease term resulting in a 
          current comparable rent of $504.21 rather than $500.94 as determined 
          by the Rent Administrator.  The fair market rent is then determined 
          by averaging the result of the Special Guidelines test with the 
          result of the comparability study - $349.07(Special Guidelines) plus 
          $504.21 (comparability) divided by two equals $426.64 plus an 
          improvement increase of $22.11 resulting in a final fair market rent 
          of $448.75 rather than $447.12 as determined by the Rent 
          Administrator.

               Taking these factors into account, the total excess rent 
          collected by the owner through July 31, 1987 is $8,547.33 rather 
          than $8626.47 as determined by the Rent Administrator.  This amount 
          is determined as follows: Owner charged $625.00 from October 1, 1983 
          to September 30, 1985 when the initial legal rent was $448.75 - this 
          resulted in excess rent of $176.25 per month times 24 months equals 
          $4230.  The owner charged $665.63 from October 1, 1985 through July 
          31, 1987 when the lawful stabilization rent was $477.92 (6 1/2 
          percent above $448.75 pursuant to a two year renewal lease under 
          Guideline 17) - this resulted in excess rent of $187.71 times 22 
          months equals $4129.62.  Adding $4230 plus $4129.62 plus excess 
          security of $187.71 results in a total excess rent to be refunded to 
          the tenant of $8547.33.

               With regard to the owner's other contentions, it is noted that 
          newspaper listings and affidavits from brokers cannot be used to 




          help determine the fair market rent of an apartment.








          BH130260RO

               If the owner does not take appropriate action to comply with 
          this order within sixty days from the date of issuance of this 
          order, the tenant may credit the excess rent against the next 
          month(s) rent until fully offset.

               The owner is directed to reflect the findings and 
          determinations made in this order on all future registration 
          statements, including those for the current year if not already 
          filed, citing this order as the basis for the change.  Registration 
          statements already on file, however, should not be amended to 
          reflect the findings and determinations made in this order.  The 
          owner is further directed to adjust subsequent rents to an amount no 
          greater than that determined by this order plus any lawful 
          increases.

               THEREFORE, in accordance with the provisions of the Rent 
          Stabilization Law and Code, it is

               ORDERED, that this petition for administrative review be, and 
          the same hereby is, granted in part, and, that the order of the Rent 
          Administrator be, and the same hereby is,  modified in accordance 
          with this order and opinion.  The total amount of excess rent 
          through July 31, 1987 is $$8547.33.

          ISSUED



                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner





                     























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