CB210354RO
                             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. CB210354RO

                                          :  DISTRICT RENT OFFICE
           1092 Realty Co.,                  DOCKET NO. K3104396-T
                                            
                                             TENANT: Alexander Lambert        
                                                     Ina Walsh
                            PETITIONER    : 
      ------------------------------------X                             

           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


      On February 16, 1988, the above-named owner filed a Petition for 
      Administrative Review against an order issued on January 27, 1988, by a 
      Rent Administrator, concerning the housing accommodations known as 1092 
      Willmohn Street, Brooklyn, New York, Apartment No. F1, wherein the Rent 
      Administrator determined the fair market rent pursuant to the special 
      fair market rent guidelines promulgated by the New York Rent Guidelines 
      Board for use in calculating fair market rent appeals.

      The Commissioner notes that this proceeding was initiated prior to April 
      1, 1984.  Sections 2526.1(a)(4) and 2521.1(d) of the Rent Stabilization 
      Code (effective May 1, 1987) governing rent overcharge and fair market 
      rent proceedings provide that determination of these matters be based 
      upon the law or code provisions in effect on March 31, 1984.  Therefore, 
      unless otherwise indicated, reference to sections of the Rent 
      Stabilization Code (Code) contained herein are to the Code in effect on 
      April 30, 1987.

      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.  

      The original proceeding was initiated by the tenant on March 31, 1984 by 
      filing an complaint and a fair market rent appeal. 

      A copy of the overcharge complaint was served on the owner, with notice 
      that this proceeding was assigned docket number K3106812-R.

      A copy of the fair market rent appeal was also served on the owner, with 
      notice that the proceeding was assigned docket number K-3104596-T.

      On July 16, 1986, prior to the issuance of the order hereunder review, 
      the Rent Administrator issued an order under docket number K3106812-R, 
      wherein it was determined that the subject tenant had not been 
      overcharged.  This order reviewed the lawful stabilized rent for the two 
      lease periods from October 15, 1983 to October 14, 1987.

      Subsequently, on November 24, 1987, the Rent Administrator issued an 
      order under docket number K3104396-T wherein the initial lawful 







          CB210354RO

      stabilized rent was established as $276.06 as of the lease term 
      commencing on October 15, 1983.  As a result a total of $6,133.56 in 
      excess rent payments by the tenant was determined.

      In its petition of Administrative Order K-3106812-R, the owner contends 
      that the DHCR had previously rejected the tenant's other complaint, as 
      stated in Order K3106812-R, and that the subject-order is thus invalid.

      The Commissioner is of the opinion that the 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 sue of special fair market rent guidelines 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, it is DHCR's procedure for fair market rent appeal cases 
      filed prior to April 1, 1984 to allow owners to submit June 30, 1974 
      free market rental data for complete lines of apartment, beginning with 
      the subject line.  The average of such comparable rentals will then be 
      updated by annual guidelines increases.  Alternatively, DHCR procedure 
      allows owners to have comparability determined on the basis of rents 
      charged after June 30, 1974.  In order to use this method owners were 
      required prior to November 1, 1984 to submit rental history data for all 
      stabilized apartments in the subject premises and subsequent to november 
      1, 1984 to submit such data for comparable lines of apartments beginning 
      with the subject line.  Post-June 30, 1974 rent data will be utilized if 
      the comparable apartment was rented to a first stabilized tenant within 
      one year of the renting of the subject apartment and if the owner 
      submits proof of service of an initial legal regulated rent notice (DC-2 
      Notice) or apartment registration form indicating that the rent is not 
      subject to challenge.

      The record in this case establishes that the tenant had filed a fair 
      market rent appeal and that such a proceeding was commenced by the DHCR 
      by assigning the case a docket number, D-3104596-T, that the owner was 
      served with a copy of the fair market rent appeal and was properly 
      advised of the nature of the proceedings and of the opportunity to 
      submit comparability data.  The owner's answer contains references to 
      similar apartments, but no usable comparables were submitted.  
      Therefore, the Commissioner finds that the Administrator properly which 
      on the evidence in the record, and determined that the rent charged the 
      tenant, $400.00 per month, exceeded the fair market rent for the 
      previous.

      The owner's sole objection to the proceeding is that the tenant had also 
      filed an overcharge complaint, and that the Administrative order that 
      was issued on July 16, 1986 had found that the same rent of $400.00 per 
      month was the lawful rent, and there was no overcharge.  Although such 
      earlier order was not proper, and is hereby revoked by the Commissioner, 
      the subject order is nevertheless a valid one since the owner was 
      properly advised of all essential requirements of fair market rent 
      appeal proceedings and was given an opportunity to submit comparability 
      data, as evidenced by the owner's references to the rents of "similar" 
      apartments.

      THEREFORE, in accordance with the Rent Stabilization Law and Code, it is

      ORDERED, that this petition be and the same hereby is denied; that the 


          CB210354RO

      Rent Administrator's order under Docket Number K3104396-T is and the 
      same hereby is affirmed, and that the Rent Administrator's order under 
      Docket Number K3106812-R is and the same hereby is revoked.



      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner





    

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