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


      ------------------------------------X 
      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    : 
      ------------------------------------X                             


           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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