CD410011RO

                                  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. CD410011RO
                                              :  DRO DOCKET NO.45552
               THURMAN ALDERMAN                  TENANT: ANDREW JACOBS

                                PETITIONER    : 
          ------------------------------------X                             
             ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


               On April 21, 1988, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on March 
          17, 1988, by the Rent Administrator, 92-31 Union Hall Street, 
          Jamaica, New York, concerning the housing accommodations known as   
          415 East 9th Street, New York, New York, Apartment 1,  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 2522.3 of the Rent Stabilization Code.

               The issue herein is whether the Rent Administrator's order was 
          warranted.

               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 in September 1984, by the 
          tenant's filing of an objection to rent in which he stated that he 
          was filing a fair market rent appeal.  

               In June 1987, a copy of the tenant's objection was served on 
          the owner along with answer forms to fill out including a request 
          for a complete rent history of the subject apartment.  Upon request 
          by the owner, three extensions of time to answer the tenant's 
          objection were granted with the final extension granted until 
          February 29, 1988.  No submission on the merits on behalf of the 
          owner was made until March 14, 1988.

               In Order Number 45552, the Rent Administrator adjusted the 
          initial legal regulated rent by establishing a fair market rent of 
          $266.48 effective April 15, 1984, 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.  In 
          addition, the Rent Administrator determined that the tenant had paid 
          excess rent of $39,247.14 through March 30, 1988, and directed the 









          CD410011RO




          owner to refund such excess rent to the tenant.

               In this petition, the owner alleges in substance that the Rent 
          Administrator's order failed to take into account improvements 
          totalling $5,338.43 in determining the fair market rent.  Such 
          improvements were documented by the owner in his submission of March 
          14, 1988.  Along with the petition, the owner submitted a copy of 
          the March 14, 1988 submission.

               In answer to the petition, the tenant stated in substance that 
          the owner's petition should be denied because the March 14, 1988 
          submission was not timely and the alleged improvements were 
          completed in 1982 several years prior to occupancy by the tenant 
          herein.

               In reply to the tenant's answer, the owner stated in substance 
          that he is properly seeking a rent increase for the improvements.

               Subsequently, the tenant's representative in a letter dated 
          November 12, 1992 stated in substance that an error was made in the 
          rent calculation chart in that the owner was given a Guideline 18 
          low rent allowance to which he wasn't entitled; that the owner 
          failed to provide proper rental data in his 1984 registration so 
          that the proceeding should have been treated as a rent overcharge 
          complaint with the initial rent being determined as the last rent 
          under rent control; that treble damages should have been imposed; 
          and that the excess rent should be updated to cover the period 
          during which the PAR proceeding was pending.

               The Commissioner is of the opinion that this petition should be 
          denied.

               Section 2522.4 of the Rent Stabilization Code provides in 
          pertinent part that an owner is entitled to a rent increase due to 
          the installation of new equipment or improvements provided to the 
          tenant's housing accommodation, on written tenant consent to the 
          rent increase.  In the case of vacant housing accommodations, tenant 
          consent is not required.

               Regarding rent controlled apartments, at the time the subject 
          apartment was rent controlled, Section 2202.4 of the Rent and 
          Eviction Regulations for New York City provided in pertinent part 
          that if the landlord and tenant by mutual voluntary written 
          agreement, subject to approval by the Administrator, agree to a 
          change in the furnishings or equipment, the  Administrator may grant 
          an appropriate rent adjustment for such change.

               In the instant case, the Rent Administrator correctly did not 
          have to consider the March 14, 1988 submission as it was not 
          submitted on a timely basis and the owner had previously been 
          granted several extensions of time to answer.  Moreover, said 






          CD410011RO


          submission dealt only with alleged improvements completed at the 
          latest in 1982 when the apartment was still rent controlled.  At 
          that time, the owner would have had to seek both the consent of the 
          rent controlled tenant who was still in occupancy at that time (rent 
          records including the Landlord's Report of Statutory Decontrol show 
          that vacancy decontrol didn't occur until February, 1984) and 
          approval from the Office of Rent Control for such improvements and 
          they would already have been considered part of the rent.  Moreover, 
          if the owner didn't charge the rent controlled tenant the 
          appropriate increase for these alleged improvements, he could not 
          charge the tenant herein a rent increase for them since they were 
          installed two years prior to occupancy by the tenant herein and 
          cannot be considered new items for which a rent increase would be 
          warranted.  Finally, many of the items listed such as painting and 
          plastering are considered repair and maintenance work for which a 
          rent increase would not be allowed.  Accordingly, the Rent 
          Administrator's order was warranted.

               With regard to the contentions made by the tenant's 
          representative concerning treating the tenant's complaint as a rent 
          overcharge and imposing treble damages, updating the proceeding to 
          cover the period during which the PAR was pending, the registration 
          of improper rental data, correcting a calculation error in the rent 
          calculation chart,  and the setting of the initial rent at the last 
          rent controlled rental, it is noted that the tenant did not file a 
          petition for administrative review of his own and that these 
          contentions are not related to the issues raised by the owner in his 
          petition.  Accordingly, such contentions cannot properly be 
          considered in this proceeding.

               The owner is directed to roll back the rent to the lawful 
          stabilized rent 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 owner.

               In the event the owner does not take appropriate action to 
          comply within sixty (60) days from the date of issuance of this 
          order, the tenant may credit the excess rent collected by the owner 
          against the next month(s) rent until fully offset.

               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 







          CD410011RO

          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.

          ISSUED
                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner




                     































    

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