BL610339RO
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 CHARLES WAXMAN, for DOCKET NO. BL610339RO
refiling of BK610033RO
: DRO DOCKET NO. 24899
SFJ REALTY CORP. TENANT: ALZONDIA FERMAINT
PETITIONER :
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ORDER AND OPINION REMANDING PROCEEDING FOR FURTHER PROCESSING
On Dcember 29, 1987, the above-named petitioner-owner timely
refiled a Petition for Administrative Review against an order issued
on October 23, 1987, by the Rent Administrator, 10 Columbus Circle,
New York, concerning the housing accommodations known as 16 Elliot
Place, Bronx, New York,apartment number 1A, 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 issue raised by the administrative appeal.
This proceeding was commenced by the tenant's filing a
complaint on July 31, 1984 that the initial legal registered rent
was an overcharge.
In answer to the complaint, the owner stated that the
complainant was the first rent stabilized tenant following a vacancy
decontrol on February 1, 1982. The owner submitted a copy of the
lease of the prior rent controlled tenant but stated that it was
unable to submit either a DC-1 or DC-2 notice as most of its records
had been destroyed in a fire.
In Order Number 24899, the Rent Administrator adjusted the
initial legal regulated rent by establishing a fair market rent of
$268.13 effective February 1, 1982, the commencement date of the
initial rent stabilized lease. The fair market rent was determined
solely on the basis of the special fair market rent guideline. In
addition, the Rent Administrator determined that the tenant had paid
excess rent of $ 2,103.66 through October 31,1987, and directed the
BL610339RO
owner to refund such excess rent to the tenant.
In this petition, the owner alleges in substance that the order
should be revoked as the rent charged was a comparable rent. On
September 10, 1993, the owner submitted a supplement to its
petition. Said supplement will not be considered herein as it is
submitted beyond the permissible time for consideration.
In response to the petition, the tenant contends in substance
that that the appeal should be denied and the Administrator's order
be upheld.
The Commissioner is of the opinion that this proceeding should
be remanded to the Rent Administrator.
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.
Therefore, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
Ordered, that this petition be, and the same hereby is, granted
to the extent of remanding the proceeding to the 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 renewal, until the Administrator
issues a new order upon remand.
ISSUED
LULA M. ANDERSON
BL610339RO
Deputy Commissioner
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