BL110366RO
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. BL110366RO
: DRO DOCKET NO. 038112
A.HABER MGMT. CORP. TENANT: J. DEUTSCH
PETITIONER :
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ORDER AND OPINION REMANDING PROCEEDING FOR FURTHER PROCESSING
On December 15, 1987 , the above-named petitioner-owner filed
a Petition for Administrative Review against an order issued on
November 10, 1987 by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York, concerning the housing accommodations
known as 109-20 Queens Boulevard, Queens, New York, apartment no.
3C, wherein the 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 Administrative Appeal is being determined pursuant to the
provisions of Section 2522.3 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 issues raised by the administrative appeal.
This proceeding was commenced by the tenant's filing on
November 16, 1984 an objection to the initial registered rent in
which the tenant stated among other things that she had moved to the
subject apartment on August 1, 1984 at a monthly rental of $650.00
and that said rent was not the legal rent.
In response to the complaint, the owner stated that the
apartment was vacancy decontrolled on July 1,1984 and the tenant was
the first rent stabilized tenant and that the stabilized rent
included an allowance for improvements made to the subject
apartment.
In Order Number 038112, the Rent Administrator determined the
fair market rent of the subject apartment at $375.88 effective
August 1, l984, the date of the commencement of the initial rent
stabilized lease, solely on the basis of the special fair market
rent guidelines order.
In this petition, the owner contends in substance that the Rent
Administrator's order is incorrect and should be modified because 1)
the rent established therein does not include a rent increase for
BL110366RO
apartment improvements; 2) the Rent Administrator failed to
consider the owner's submission for a comparability study; and 3)
the Rent Administrator used an incorrect figure as the maximum rent.
In answer to the petition, the tenant contends that the Rent
Administrator's order is correct and should be upheld.
The Commissioner is of the opinion that this proceeding should
be remanded.
Section 2522.3(e) of the Rent Stabilization Code provides in
pertinent part that in determining Fair Market Rent Appeals,
consideration shall be given to the applicable guidelines
promulgated for such purposes by the Rent Guidelines Board and to
rents generally prevailing for substantially similar housing
accvommodations in buildings located in the same area as the housing
accommodation involved. The rents for these comparable housing
accvommodations may be considered where such rents are:
1) Legal regulated rents, for which the time to file a
Fair Market Rent appeal has expired and no Fair Market Rent
Appeal is pending, or the Fair Market Rent Appeal has finally
been 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.
In the instant case, the owner was not afforded an opportunity
to submit post July 1, 1974 comparability data as outlined above.
Accordingly, the proceeding must be remanded to allow such a
submission. The tenant should then be given an opportunity to
comment on any submission by the owner.
Review of the record confirms that the owner submitted
documentation, i.e. invoices and cancelled checks in support of its
claim for a rent increase based on apartment improvements
and that the tenant commented thereon. However, the Administrator's
order did not indicate whether any consideration had been given to
the improvements claim. Upon remand, the Rent Administrator should
give consideration to whether the alleged improvements warrant a
rent increase as claimed by the owner.
Further the Rent Administrator should determine whether the
correct maximum base rent rate was used and whether the owner was
entiutled to a fuel cost adjustment pursuant to the special fair
market rent guideline.
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 for further processing in
accordance with this order and opinion. The automatic stay of so
much of the Rent Administrator's order as directed a refund is
BL110366RO
hereby continued until a new order is issued upon remand.
ISSUED
LULA M. ANDERSON
Deputy Commissioner
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