STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. CA210224RO
: DRO DOCKET NO. 13649
TENANT: NATAN KISHINEVSKY
ORDER AND OPINION REMANDING PROCEEDING FOR FURTHER PROCESSING
On December 31, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
DEcember 1, 1987, by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York, concerning the housing accommodations
known as 3091 Brighton 5th Street,Brooklyn, New York, Apartment No.
5P wherein the Rent Administrator established the initial legal
registered rent and directed the owner to refund excess rent in the
amount of $4,484.35 inclusive of excess security.
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
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 24, 1984 when the tenant
filed an objection to the initial registered rent, alleging that the
initial registered rent exceeded the fair market rent.
In his initial response, the owner asserted that the tenant had
signed a statement dismissing the complaint. In reply, the tenant
disavowed the signed statement, stating that although he had signed
the statement, he had no intention of withdrawing his complaint but
believed that by signing the statement, he was showing satisfaction
with the refrigerator provided by the owner.
On December 26, 1984, the owner was served with the
requirements for processing a Fair Market Rent Appeal, including the
requirements for consideration of comparables, i.e. the rents of
comparable apartments. The owner submitted only the leases of seven
substatntially similar apartments but did not submit substantiating
In the order hereunder appeal, the Administrator rejected the
comparables submitted by the owner and established the legal rent
solely on the basis of the special guideline, finding that the owner
had collected excess rent.
In his appeal, the owner contends that the order should be
reversed because: 1) the tenant may not have timely filed the
complaint which should have been filed within ninety days of service
of the initial registration; 2) the tenant has waived the right to
a Fair Market Rent Appeal (FMRA) by accepting a Federal Section 8
rent subsidy; the tenant did not object to the rent accepted by the
Federal Section 8 program as reasonable; 3) the Administrator erred
in not considering the comparables submitted by the owner and should
have considered the four year limitation on the overcharge found.
The Commissioner is of the opinion that this proceeding should
be remanded for further processing.
The evidence of record indicates that the tenant filed the fair
market rent appeal within the required ninety day period. Further
the tenant did not waive his right to file a fair market rent appeal
by accepting a Section 8 rent subsidy.
However, with respect to the comparables submitted by the
owner, the Commissioner notes that the owner did not submit all the
information requested to receive consideration of the submitted
comparables. However, review of the record reveals that the answer
packet sent to the instant owner was in accordance with the former
Rent Stabilization Code and not with the Rent Stabilization Code in
effect on May 1, 1987. Due process requires that the owner be given
an opportunity to submit for consideration comparables as permitted
by the current Code.
Therefore, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
Ordered, that this petition be, and the same hereby is, granted
to the extent of remanding the proceeding for further processing in
accordance with this order and opinion.
JOSEPH A. D'AGOSTA