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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
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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 :
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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
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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
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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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