DD410163RT

                                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  SJR No. 6767
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NO. DD410163RT

                                          :  DISTRICT RENT OFFICE
           Victoria A. Dickson,              DOCKET NO. Z058302
                                             
                                             OWNER: Brown, Simon and
                                                    Furtsch

                            PETITIONER    : 
      ------------------------------------X                             

                 ORDER AND OPINION REMANDING PROCEEDING ON APPEAL


      On April 20, 1989, the above-named petitioner-tenant filed a Petition 
      for Administrative Review against an order issued on March 23, 1989, by 
      the Rent Administrator, 10 Columbus Circle, New York, New York, 
      concerning the housing accommodations known as 219 West 81st Street, New 
      York,     New York, Apartment No. 12K, wherein the Rent Administrator 
      determined that the tenant's complaint should be dismissed because it 
      was untimely filed.

      Subsequent thereto, the petitioner-tenant filed a petition in the 
      Supreme Court pursuant to Article 78 of the Civil Practice Law and 
      Rules, in the nature of mandamus, for a judgment directing the Division 
      to render a determination of the petitioner's administrative appeal.

      The Administrative Appeal is being determined pursuant to the provisions 
      of Section 26-513 of the Rent Stabilization Law.

      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 originally commenced in August 1985 by the filing of 
      a tenant's objection challenging the initial rent, alleging that the 
      owner had not provided a copy of the Apartment Registration Form; that 
      the initial rent on January 1, 1985 exceeded the fair market rent; that 
      prior to the occupancy of the tenant herein a rent controlled tenant had 
      occupied the subject apartment for 45 years until her death in December 
      1984: that the initial rent of $1800.00 is more than twice the rent paid 












          DD410163RT

      for other apartments in the subject line; and that the conditions of the 
      apartment and building do not warrant such a high rental.

      The tenant's objection was served on the owner who responded that the 
      unique nature of the subject apartment should be considered in 
      determining the fair market rent.

      The owner submitted copies of the mailing certificates from the Rent 
      Stabilization Association for 1984, 1985 and 1986 plus the apartment 
      registration list for 1986.

      In the order under appeal herein the Rent Administrator determined that 
      on May 29, 1984 the Initial Apartment Registration (hereafter RR1) was 
      served on the rent stabilized tenant in occupancy on April 1, 1984; that 
      the tenant's objection filed on August 14, 1985 was n excess of 90 days 
      thereafter and therefore dismissed the tenant's objection as untimely 
      filed.

      In her petition, the tenant states in substance that the Rent 
      Administrator's order should be revoked because the tenant on April 1, 
      1984 was not a rent stabilized tenant; that her occupancy began January, 
      1985 and therefore the May 29, 1984 service of the RR1 could not have 
      been properly served on her; that the first stabilized tenancy began 
      with her lease commencing January 1, 1985; that no initial apartment 
      registration was served on her; and that the fair market rent of the 
      subject apartment should be determined.

      In response to the tenant's petition, the owner states in substance that 
      the determination was correct.

      During the pendency of the appeal, the tenant vacated the subject 
      apartment but a forwarding address is on file.

      The Commissioner is of the opinion that this proceeding should be 
      remanded so that the tenant's objection can be processed as a fair 
      market rent adjustment application on the merits.

      A review of the record in this case discloses that the apartment was 
      registered as a rent controlled unit on April 1, 1984; that a Maximum 
      Base Rent had been established for the subject apartment by the Office 
      of Rent Control; that although the owner submitted the Rent 
      Stabilization Association Certificate of Mailing of the 1984 
      registrations on May 29, 1984, the owner did not submit a copy of the 
      RR1 nor the 1984 apartment listing indicating the tenants served; that 
      moreover the subject apartment was rent controlled on that date; that 
      there is no evidence in file that either an amended RR1 or a DC-2 notice 
      of initial rent was ever served on the complainant; and that the owner 
      in its responses to the Rent Administrator did not deny that the 
      complainant was the first stabilized tenant.

      Therefore the Commissioner finds that this proceeding should be remanded 
      to treat the tenant's complaint as a timely fair market rent adjustment 






          DD410163RT

      application filed after April 1, 1984.  All parties are to be notified 
      and given a chance to submit evidence in such remanded proceeding.

      Upon remand, the owner should be served a copy of the tenant's 
      application and the fair market rent appeal notice advising the owner of 
      comparability requirements pursuant to Sections 2522.3(e) and (f) of the 
      Rent Stabilization Code effective May 1, 1987.  In addition, the Rent 
      Administrator must serve the owner's prior submissions alleging the 
      unique status of the subject apartment on the tenant and consider the 
      evidence submitted by both parties with regard to the owner's contention 
      that the unique features of the apartment should be considered in 
      determining the fair market rent.

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

      ORDERED, that this proceeding be, and the same hereby is remanded to the 
      Rent Administrator to determine the tenant's fair market rent appeal on 
      the 
      merits.


      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner






    

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