CA 110248 RO
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.: CA 110248 RO
GUPTA AND PRASAD DRO DOCKET NO.: 30683
REALTY CORP.,
TENANT: USHA TANEJA
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND
REMANDING PROCEEDING TO THE RENT ADMINISTRATOR
On January 28, 1988, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
January 4, 1988, by a Rent Administrator, concerning the housing
accommodations known as 39-06 63rd Street, Woodside, New York,
Apartment No. 2C, wherein the Rent Administrator determined the
fair market rent pursuant to the special fair market rent guidelines
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 action commenced when the tenant filed an objection to the
initial stabilized rent on September 8, 1984. The complaint stated
that the tenant took occupancy of the premises commencing April 1,
1981 at a rent of $275.00 per month under the Section 8 Program as
administered by the New York City Housing Authority. The tenant
also stated that the owner has been charging her $325.00 per month,
which is $31.00 more than the Housing Authority assessment of
$294.00, as of April 1, 1984. With the complaint, the tenant
submitted an authorization letter and renewal lease from the New
York City Housing Authority stating that her share of the rent was
being increased to $270.00 out of the total $294.25, effective
August 1, 1984.
In its answer to the complaint, the owner stated that the subject
apartment was subject to rent control prior to the complaining
CA 110248 RO
tenant's occupancy; that the tenant's original rent was $325.00 per
month; and that although the tenant's rent has been increased in 4
successive lease periods in accordance with the amounts promulgated
in the guidelines, the tenant has ignored these increases and
continues to pay a rent of $325.00 per month from her original
lease. Enclosed with the owner's answer was the lease for $325.00
per month, signed by the tenant and the owner and dated March 8,
1981.
In the order under appeal herein, the Rent Administrator adjusted
the initial legal regulated rent by establishing a fair market rent
of $205.01, effective March 17, 1981, the commencement date of the
initial rent stabilized lease, and directed the owner to refund
excess rent in the amount of $9,135.12. The Administrator stated
that the owner had failed to respond with the necessary data on the
rents of comparable apartments in the processing of a fair market
rent appeal and as a result, the initial fair market rent was
determined entirely on the basis of the special guidelines orders
promulgated by the Rent Guidelines Board. In calculating the amount
of excess rent, the Administrator used the lease amounts cited by
the owner in its answer to the complainant as reflecting the amounts
paid by the tenant.
In its petition the owner alleges that the calculation of overcharge
was incorrect as to the amounts collected by the owner and the
dates. It also stated that the initial fair market rent had been
set by the Housing Authority.
The tenant answers that he signed the original lease for a rent of
$325.00 with the understanding that it would be adjusted by the
Section 8 Program. However, the owner refused to reduce the rent
to $275.00, which was the amount approved by the Housing Authority,
and insisted that the tenant pay the additional $50.00 per month.
The owner then continued to demand higher rents than what the
Housing Authority approved. The tenant also acknowledged that he
never actually paid more than $325.00, and that the amount of excess
rent calculated by the Administrator was probably excessive.
The Commissioner is of the considered opinion that the owner's
petition should be granted in part and the proceeding remanded to
the Rent Administrator for a new determination.
Section 2522.3 of the current Rent Stabilization Code provides in
pertinent part that fair market rent adjustment applications are to
be determined by the use of special fair market rent guidelines
orders promulgated by the Rent Guidelines Board, and by a comparison
with the rents generally prevailing in the same area for
substantially similar housing accommodations. In utilizing such
comparability data for fair market rent appeal cases filed after
April 1, 1984, it is the DHCR's procedure to accept, where
validated, (1) the legal regulated rents for which the time for
filing a Fair Market Rent Appeal has expired and no such appeal is
pending, or which has been determined pursuant to a Fair Market Rent
CA 110248 RO
Appeal, as based on a lease commencing within a four-year period
prior to, or a one-year period subsequent to the commencement of the
initial lease period of the premises; or (2) at the owner's option,
the market rents in effect for comparable housing on the date of the
initial lease for the subject-premises.
Although the owner states that the Administrator's determination of
the initial rent was improper because it ignored the fact that the
rent was set by the New York City Housing Authority, this in and of
itself does not make the order invalid. There is nothing in the
record to show that the subject accommodations were rehabilitated
or in any other way placed under the aegis of another governmental
agency such as exempts otherwise rent stabilized accommodations from
a fair market rent appeal. These exceptions are quite specific, and
are enumerated in Section 2521.1 of the Rent Stabilization Code.
Since the owner submits nothing to show that such an exemption
applies in this case, it was proper for the Administrator to process
a fair market rent appeal.
Unfortunately, the record does not establish that it was properly
done. The record indicates that the owner was never notified that
the complaint was to be processed as a fair market rent appeal and
was not afforded an opportunity to submit comparability data
pursuant to the requirements of the current Rent Stabilization Code.
Accordingly, the proceeding must be remanded to the Rent
Administrator for a redetermination of the fair market rent wherein
the owner will be fully advised of the requirements for suitable
comparables, and be afforded an opportunity to submit such data.
Additionally, both the petitioner and tenant, in his answer, state
that the tenant did not pay as much rent as stated on the
calculations chart. The record is also insufficient on this matter,
and on remand the Administrator must obtain sufficient documentation
of rental payments to establish the amount of excess rent, if any.
It is noted that in answer to a petition for administrative review
filed by the tenant under Docket Number GE 110137 RT involving a
complaint of lease renewal violation the owner submitted a rental
history indicating the rental amounts paid by the tenant and
indicating that the Section 8 subsidy continued until March 31,
1988. On remand this submission should be considered by the
Administrator and a copy of said submission should be forwarded to
the tenant for comment.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that the owner's 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
CA 110248 RO
Administrator's determination as to the rent is not stayed and shall
remain in effect, except for any adjustments pursuant to lease
renewals, until the Administrator issues a new Order upon remand.
ISSUED
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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