DG 410079 RO
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. DG 410079 RO
: DISTRICT RENT OFFICE
Irving Golden, DOCKET NO. L 3113076 R
TENANT: William Hunsinger
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On July 11, 1989, the above-named petitioner-owner timely refiled a
Petition for Administrative Review against an order issued on May 24,
1989, by the Rent Administrator, Gertz Plaza, Jamaica, New York,
concerning the housing accommodations known as 315 West 14th Street,
New York, New York, Apartment No. 4E, wherein the Rent Administrator
determined the fair market rent pursuant to the special fair market
guideline promulgated by the New York City Rent Guidelines Board for use
in calculating fair market rent appeals.
The Commissioner notes that this proceeding was filed 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 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 March 1984 by the filing of
a complaint of rent overcharge by the tenant who took occupancy of the
subject apartment on August 22, 1983 at a rental of $300.00 per month.
During the processing of the tenant's complaint, the tenant requested
the Rent Administrator to consider the complaint as a fair market Rent
Appeal (hereafter FMRA) because the first stabilized tenant (L. Parrish)
was never served a copy of the Notice of Initial Rent (hereafter DC-2).
The owner was served with a copy of the tenant's application and
afforded an opportunity to submit June 30, 1974 or post June 30, 1974
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comparability data for determining the fair market rent of the subject
apartment and to submit proof of any improvements made in the subject
apartment.
In response, the owner stated in substance that a DC-2 Notice was served
on the prior tenant (L. Parrish) who was the first stabilized tenant in
the subject apartment and no challenge was filed within 90 days and
therefore the owner was entitled to charge a fair market rent of
$300.00.
The owner was requested by the Rent Administrator to submit proof of
service of the DC-2 form on the first stabilized tenant but failed to do
so.
In Order Number ZL 3113076 R, the Rent Administrator adjusted the
initial legal rent by establishing a fair market rent of $196.50
effective September 8, 1982, the date of the first stabilized lease.
In this petition, the owner contends in substance that only the first
stabilized tenant may file a FMRA and that the complainant was the
second stabilized tenant; that the Rent Administrator used an incorrect
1980 MBR as the basis of the Fair Market Rent and that the correct 1980
MBR was $218.30. The owner submitted leases for the E line in the
subject building, proof of mailing of the RR1 forms for the E line and
an affidavit from the prior tenant (L. Parrish) acknowledging receipt of
the DC-2 form.
In answer to the owner's petition, the tenant stated in substance that
the DC-2 notice was never served on the prior tenant (L. Parrish) and
submitted notarized statements from the prior tenant attesting to non-
receipt of the DC-2 notice and repudiating the affidavit in the owner's
submission.
The tenant's submission was served on the owner who was given an
opportunity to respond.
The Commissioner is of the opinion that this 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 use 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. In order to determine rents generally prevailing int he
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 fair market rental data for
complete lines of apartments, 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 complete lines of apartment 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 submit
DG 410079 RO
proof of service of a DC-2 Notice or apartment registration form
indicating that the rent is not subject to challenge.
An examination of the records in this case discloses that in the
proceeding before the Rent Administrator, the owner did not submit
either comparables or proof of service of the DC-2 notice although
afforded an opportunity to do so and has not submitted a reasonable
excuse for its failure to do so. Since this is not a de novo proceeding
the owner's contention with regard to service of the DC-2 notice and
comparability cannot be considered for the first time on appeal.
A further examination of the record in this case discloses that the Rent
Administrator used the correct 1980 MBR as indicated in the rent control
records on file with agency in calculating the fair market rent.
The Commissioner rejects the owner's contention that the complainant is
precluded from challenging the Initial Rent.
Section 26 of the former Rent Stabilization Code provides in pertinent
part that after service of the Notice of Initial legal Regulated Rent
also designated as the DC-2 Notice) on the first tenant taking occupancy
of a formerly rent controlled unit, the time within which such a tenant
may file a FMRA is limited to 90 days after such notice was mailed to
the tenant by the owner by certified mail.
In the instant case, the owner failed to show that the prior or
subsequent tenant was served the DC-2 notice by certified mail as
required.
Accordingly, the Rent Administrator's order was warranted.
During the Pendency of the Appeal, the prior tenant (L. Parrish)
submitted a request to be included as a party to the proceeding.
The owner was served a copy of the prior tenant's request and given an
opportunity to respond.
Section 2526.1C of the current Rent Stabilization Code provides for the
inclusion of any affected tenant in any proceeding commenced by DHCR.
Accordingly, the Commissioner has calculated a refund of $1,138.50 which
is due the prior tenant for the 11 on this of his occupancy from
September 1, 1982 through July 31, 1983 ($300.00 minus $196.50 - $103.50
per month x 11 months = $1,138.50).
The owner is directed to refund the excess rent to the prior tenant (L.
Parrish).
The Commissioner notes that the complainant has also vacated the subject
apartment but has forwarded a current address.
Because this determination concerns lawful rents only through
November 22, 1988, the owner is cautioned to adjust subsequent rents to
an amount no greater than that determined by the Rent Administrator's
order plus any lawful increases, and to register any adjusted rents with
this order and opinion being given as the explanation for the
adjustment.
DG 410079 RO
If the owner does not take appropriate action to comply with this order
within sixty days from the date of issuance of this order, the tenants
herein may bring an appropriate action in a court of competent
jurisdiction.
THEREFORE, in accordance with the provisions of the Rent 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. A copy of the order is being served on
the current occupant of the subject apartment.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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