CA410124RO
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. CA410124RO
: DRO DOCKET NO.L3111711RT
JORDAN FOX TENANT: GAIL DRILLINGS
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
PART
On January 21, 1988, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
January 13, 1988, by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York, concerning the housing accommodations
known as 202 West 82nd Street, New York, New York, Apartment No. 2B,
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 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 20 A (4) 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 February, 1984 by
the tenant's filing of a fair market rent adjustment application and
an overcharge complaint. The tenant stated that she first moved to
the subject apartment on September 15, 1978, pursuant to a two year
lease at a rental of $350.00 per month.
In response to the complaint, the owner submitted a complete
rental history from September 15, 1978 and indicated that the tenant
herein was the first rent stabilized tenant.
CA410124RO
In Order Number CDR 32,283, the Rent Administrator adjusted the
initial legal regulated rent by establishing a fair market rent of
$299.33 effective September 15, 1978, and directed the owner to
refund excess rent of $9,376.09 to the tenant.
In this petition, the owner alleges in substance that the owner
was not credited with a $12.00 fuel adjustment effective January 1,
1980 to June 30, 1980 reduced to $8.00 from July 1, 1980 through
September 30, 1980 to which the owner was entitled; that the Rent
Administrator incorrectly states the complainant's lease term of
October 1, 1985 through September 30, 1986 as October 1, 1985
through September 30, 1987 and computes the excess rent for this
period as 24 months rather than the correct 12 months; and that the
Rent Administrator incorrectly listed a major capital improvement
rent increase as being .36% rather than the correct 3.60%.
In answer to the owner's petition, the tenant stated in
substance that she hoped any computation errors would be resolved as
quickly as possible.
The Commissioner is of the opinion that this petition should be
granted in part.
Section 20 A (4) of the Rent Stabilization Code provides in
pertinent part that for those dwelling units which were subject to
the City Rent Law on June 30, 1974, and thereafter became subject to
the Rent Stabilization Law as a result of vacancy, the owner may not
increase the rent charged in the initial lease or other rental
agreement for a period of one year or until the expiration of the
initial lease, or rental agreement, whichever is later.
In the instant case, the fuel allowance referred to by the
owner in his petition occurred during the initial lease after
vacancy decontrol. Accordingly, no rent increase for the fuel
allowance is permitted pursuant to Section 20 A (4).
With regard to the owner's contention concerning the major
capital improvement rent increase, it is noted that .36% was a
typographical error made by the Rent Administrator, but that the
owner was credited by the Rent Administrator with the correct major
capital improvement rent increase of $12.28 - 3.60% of the July,
1981 rent of $341.24.
The owner is correct in his contention that the Rent
Administrator incorrectly listed the lease commencing October 1,
1985 as being a two year lease instead of a one year lease and
finding excess rent of $2,118.48 ($88.27 per month x 24 months)
during this period instead of the correct excess rent of $1059.24
($88.27 per month x 12 months). It is noted that the following
lease term was correctly listed by the Rent Administrator as
commencing October 1, 1986. Accordingly, the Rent Administrator's
order is hereby modified to show the correct lease term of October
CA410124RO
1, 1985 to September 30, 1986 with excess rent for this lease term
of $1059.24 and total excess rent of $8316.85 including excess
security as of January 31, 1988. The lawful stabilization rents
remain the same as in the Rent Administrator's order.
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.
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.
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 January 31, 1988 is $8316.85.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
CA410124RO
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