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STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X SJR No: 6358
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. CI 410080 RO
: DISTRICT RENT ADMINISTRATOR'S
JNPJC Brusco Associates, DOCKET NO. 021153
TENANT: Harriet Miller
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On September 26, 1988, the above-named current owner filed a petition
for administrative review of an order issued on February 23, 1988, by a
District Rent Administrator concerning the housing accommodations known
as 203 West 85th Street, New York, New York, Apartment No. 33, wherein
the Rent Administrator determined that the owner had collected excess
Subsequently, the tenant filed a petition in the Supreme Court in the
nature of mandamus pursuant to Article 78 of the Civil Practice Law and
Rules for a judgment directing the DHCR to render a determination of the
petitioner's administrative appeal.
By stipulation dated May 29, 1992, the court proceeding was withdrawn on
condition that the Division of Housing and Community Renewal (DHCR)
render a determination of the owner's petition for administrative review
within 120 days of May 29, 1992.
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 on July 30, 1984 upon the filing of a
tenant's objection to registration. The tenant requested both a fair
market rent appeal and an overcharge inquiry. In addition the tenant
questioned the room count shown on the registration form. The form
listed the subject unit as having 3 rooms and the tenant stated that it
was a 1 room apartment.
The tenant's complaint was served on the prior owner. In its answer,
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the prior owner alleged that the tenant was precluded from filing a fair
market rent appeal because she was not the first stabilized tenant.
Also, the prior owner acknowledged that based on the definition of a
room used by the DHCR, the subject apartment was a one room apartment
and not a three room apartment as indicated on the registration form.
Finally, the prior owner addressed the overcharge complaint and alleged
that no overcharge occurred.
In the order here under review, the Administrator determined that this
case should be processed as a fair market rent appeal based on the prior
owner's failure to produce proof that the first rent stabilized tenant
was served with the DC-2 form. Because the prior owner had submitted no
comparables, the Administrator, by using only the special guidelines,
determined the fair market rent to be $172.72 effective January 17, 1980
and that the excess rents collected totalled $10,416.18. The
Administrator also ordered that the registration be amended to reflect
the fact that the subject apartment contains one room.
In the petition for administrative review, the current owner asserts
that it was never served with any notices or orders during the entire
proceeding. The current owner further asserts that it was the duly
registered owner of the subject premises for two years before the
Administrator's order was issued. Accordingly, the current owner states
that its petition is timely because it was filed within 35 days of
receiving a copy of the order from the prior owner.
The tenant's answer, in substance, alleges that the 35 day deadline is
absolute and no exceptions are permitted. The tenant argues that the
prior owner had fully participated in the proceeding below and that
effectively DHCR would be permitting the owners two opportunities to
litigate the issues.
Subsequently, the current owner submitted a supplemental pleading which
addressed the merits of the case. In the supplemental petition the
current owner provides comparability data. The owner indicates that
only apartment 3 in the subject line was rented to a first stabilized
tenant within four years prior to or one year subsequent to the renting
of the subject apartment. The owner cites two apartments in another
line, apartments 2 and 22, which the owner indicates are the only two
apartments in that line which are similar in size to the subject
apartment and which were rented to first stabilized tenants during the
appropriate period. The owner submits a lease and an apartment
registration form with proof of service for apartments 2 and 22, and a
decontrol report for apartment 22. Further, the current owner alleges
that the Commissioner must allocate the excess rents collected between
the prior owner and the current owner.
After careful consideration, the Commissioner is of the opinion that
this petition should be granted in part.
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The Commissioner finds that this petition for administrative review must
be deemed timely. The 35 day time period for the filing of a petition
for administrative review is strictly enforced. However, it is DHCR
policy that under extraordinary circumstances the Commissioner may deem
a petition timely despite the fact that it was filed more that 35 days
from the issuance of the Administrator's order. In this case, the
current owner has sustained its burden of proving such extraordinary
circumstances. The current owner has stated and DHCR records confirm
that it was the registered owner of the subject premises for two years
before the issuance of the Administrator's order, but that no copy of
the Administrator's order was sent to the current owner. Accordingly,
the petition for administrative review is deemed timely. Also, the
current owner received no notices from DHCR during the pendency of the
proceeding below. In order to fully protect the current owner's due
process rights, all of its submissions will be considered in the
determination of this order and opinion.
After a review of the owner's submissions, the Commissioner finds that
the current owner has failed to submit usable comparability data.
Apartments 2 and 22 are submitted as similarly-sized comparable
apartments in the subject building. With regard to apartment number 2,
the current owner has failed to document a decontrol date for that
apartment, or to prove that the apartment was in fact vacancy
decontrolled. While DHCR records include a rent control registration
card indicating that the report of vacancy decontrol was filed on
January 22, 1979, this was one of a number of such decontrol reports
filed for apartments in the subject building and therefore cannot be
considered dispositive of the date of decontrol for apartment 2.
Moreover, additional rent control records, including a 1967 rent control
order indicating that apartment number 2 was occupied by the
superintendent at that time and a 1972 Maximum Base Rent Order for the
subject building and subsequent Maximum Base Rent schedules submitted by
the owner which do not include the subject apartment, negate the owner's
contention that apartment 2 was vacancy decontrolled in August 1980.
With regard to apartment number 22, the current owner has also failed to
prove the date of decontrol. The decontrol report for apartment 22
submitted by the owner was one of the decontrol reports filed by the
owner in January 1979 and merely indicates that the unit was
decontrolled "after July 1, 1971." No other evidence has been presented
to prove the owner's contention that the unit was decontrolled on July
With regard to apartment 3, the current owner has failed to substantiate
the date of decontrol. DHCR records indicate that apartment 3 was also
one of the apartments for which a vacancy decontrol report was filed by
the owner in January 1979. Again, this report cannot be considered
dispositive of the date of decontrol. Further, the current owner has
failed to produce documentation that the first stabilized tenant of
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apartment 3 was afforded an opportunity to challenge the first
stabilization rent. No Notice of Initial Legal Regulated Rent or
Initial Apartment Registration form for apartment 3 has been submitted
and the RSA mailing list submitted by the owner as proof of service of
the initial apartment registration does not include apartment 3.
Accordingly, these 3 apartments will not be used as comparable
apartments in the determination of the fair market rent for the subject
Finally, the Commissioner finds that the excess rents collected by the
prior owner and the current owner must be allocated between the owners.
In a fair market rent appeal each owner is liable to the tenant only for
the excess rents actually collected. The Administrator determined that
the excess rent totalled $10,416.18 through February 29, 1988 including
excess security. Title to the subject building transferred in June
1986. Therefore, the prior owner, 203 West 85th Street Associates, is
liable to the tenant for $8,047.96 and the current owner, JNPJC Brusco
Associates, is liable to the tenant for $2,368.22.
The prior owner is directed to refund that portion of the excess rent
for which it is liable.
The current owner is directed to roll back the rent to the lawful
stabilized rents consistent with this decision and to refund or fully
credit against future rents over a period not exceeding six months from
the date of receipt of this order, the excess rent collected by the
In the event the current owner does not take appropriate action to
comply within sixty (60) days from the date of this order, the tenant
may credit the excess rent collected by the current owner against the
next months rent until fully offset.
Because this determination concerns lawful rents only through
February 29, 1989, the owner is cautioned to adjust subsequent rents to
an amount no greater than that determined by this order plus any lawful
increases, and to register any adjusted rents with this order and
opinion being given as the explanation for the adjustment.
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 to the extent
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JOSEPH A. D'AGOSTA
Acting Deputy Commissioner