CC110307RO
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. CC110307RO
: DISTRICT RENT OFFICE
Joan M. Bebry, DOCKET NO. 8105
TENANT: Raymond Miller
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On March 4, 1988, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on February 4, 1988, by
the Rent Administrator, 10 Columbus Circle, New York, New York,
concerning the housing accommodations known as 28-44 43rd Street,
Queens, New York, Apartment No. 1B, 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 2526.1 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
warranted.
This proceeding was originally commenced by the tenant's filing of
complaint in which the tenant questioned his initial rent for the
subject apartment.
In response the owner stated that the tenant was the first rent
stabilized tenant and cited an apartment at a rental of $325.00 to be
used as a comparable.
In Order Number 8105, the Rent Administrator adjusted the initial legal
regulated rent by establishing a fair market rent of $242.48 effective
June 1, 1983, 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 since the owner failed to establish
that the rent of the comparable apartment was a legal rent - that is
that a DC-2 Notice had been served on the tenant of such apartment and
if served that any challenge had been resolved. In addition the Rent
Administrator determined that the tenant herein had paid excess rent of
$6501.50 including excess security and directed the owner to refund the
excess rent to the tenant.
In this petition, the owner alleges in substance that she should have
CC110307RO
been allowed a 4% lease increase in the calculation of the initial legal
regulated rent; that she did not know of the need to file a DC-2 Notice
and that a fair market rental of $350.00 for the subject apartment was
equitable. In support of her petition, the owner submitted an
evaluation from a broken to the effect that for similar apartments in
the area of the subject premises, the fair market rent was between
$350.00 and $375.00 in 1983.
During the course of the appeal proceeding, the tenant indicated that
she had moved from the subject apartment.
The Commissioner is of the opinion that this petition should be denied.
Section 26-513 of the Rent Stabilization Law provides, in pertinent
part, that fair market rent adjustment applications are to be determined
by the use of special fair market rent guideline orders promulgated by
the New York City Rent Guidelines Board and by the rents generally
prevailing in the same area for substantially similar housing
accommodations. In order for comparability data to be usable, the owner
must submit proof of service of a DC-2 Notice or apartment registration
form indicating that the rent of a comparable apartment is not subject
to challenge.
In the instant case the owner has conceded that she did not serve the
required DC-2 Notice on the tenant in the apartment that she cited for
comparability purposes. In addition the statement of a real estate
broker is not acceptable for comparability purposes. Accordingly, the
Rent Administrator correctly did not consider comparability data in
determining the fair market rent of the subject apartment. Further the
Rent Administrator correctly determined the fair market rent pursuant to
the special fair market rent guidelines which does not include any
allowance for a lease guideline increase. Therefore the Rent
Administrator's order was warranted.
A copy of this order is being sent to the current occupant of the
subject apartment.
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, denied, and, that the order of the Rent Administrator be, and
the same hereby is, affirmed.
CC110307RO
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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