DH410407RO, SJR7170

                                  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. 7170 
          IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO. DH410407RO
                    VILLAGE REALTY            :  DRO DOCKET NO.ZL3110100RT
                                                 TENANT: JOEL ABREVAYA
                                PETITIONER    : 
          ------------------------------------X                             
             ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


               On August 25, 1989,  the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on July 
          26, 1989, by the Rent Administrator, 92-31 Union Hall Street, 
          Jamaica, New York, concerning the housing accommodations known as 
          153 West 10th Street, New York, New York, Apartment No. 8, 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 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 and 
          Section 2521.1(d) 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 by the tenant's filing of a fair 
          market rent adjustment application  and a rent overcharge complaint 
          on March 31, 1984 in which the tenant stated that he first moved to 
          the subject apartment on May 4, 1979, at a rental of $350.00 per 
          month.

               On October 10, 1984, the owner was advised by the DHCR that the 
          tenant had filed a fair market rent adjustment application and 
          afforded the opportunity to prove if it or a prior owner had served 
          a DC-1 or DC-2 Notice of Initial Legal Regulated Rent or Apartment 









          DH410407RO, SJR7170




          Registration Form RR-1 on the first stabilized tenant or subsequent 
          tenant.  

               On June 17, 1985, the owner was served by the DHCR with a copy 
          of the tenant's fair market rent adjustment application and afforded 
          an opportunity to submit comparability data and proof of service of 
          the DC-1 or DC-2 Notice or RR-1 form.  In a response dated July 2, 
          1985, the owner's attorney (the same firm representing the owner on 
          its appeal) stated that the owner's records indicate that prior to 
          occupancy by the tenant herein, the subject apartment was rent 
          controlled and first became subject to rent stabilization upon 
          occupancy by the tenant herein.

               On July 15, 1985, the owner was sent a summary notice by the 
          DHCR advising it that since it failed to submit the data requested 
          in the notice of June 17, 1985, the fair market rent would be 
          determined on the basis of the 1978 maximum rent increased by the 
          appropriate Special Fair Market Rent Guidelines order and giving the 
          owner ten days for any reply.  On July 22, 1985, the owner through 
          its attorney requested an extension of time to submit comparability 
          data and was afforded ten days from July 22, 1985 to submit 
          comparability data in a letter dated July 22, 1985 to its attorney 
          from the DHCR.  No response was received from the owner.  
          Subsequently on May 26, 1989, the owner was afforded a final 
          opportunity of twenty days to submit evidence.  In a response dated 
          June 19, 1989, the owner's attorney requested a 30 day extension of 
          time to answer due to the fact that the May 26, 1989 notice was sent 
          to the owner and not directly to the owner's attorney.  On June 29, 
          1989, the owner's attorney followed up this request by pointing out 
          that he had requested maximum base rent information on the subject 
          apartment from the FOIL Unit and needed an extension until after he 
          had time to examine the requested rent information.  On July 12, 
          1989, the DHCR sent a letter to the owner's attorney informing him 
          that the request for an extension had been turned down.

               In Order Number ZL3110100RT, the Rent Administrator adjusted 
          the initial legal regulated rent by establishing a fair market rent 
          of $161.51 effective May 4, 1979, the commencement date of the 
          initial rent stabilized lease.   The Rent Administrator also 
          directed that the owner refund excess rent of $19,730.83 to the 
          tenant covering the period from May 4, 1979 through May 31, 1986. 

               In this petition, the owner alleges in substance that the 
          extension should have been granted so that the owner could have 
          obtained copies of needed rent control and maximum base rent records 
          prior to completing its answer; that pursuant to the decision in 
          J.R.D. Management v. Eimicke, the owner was not required to submit 
          leases prior to April 1, 1980 at the earliest so that the tenant's 
          complaint should have been dismissed as there was no overcharge 
          subsequent to April 1, 1980; that the owner had submitted two 
          comparable rents which were not considered by the Rent 






          DH410407RO, SJR7170


          Administrator; that the Rent Administrator failed to afford the 
          owner an opportunity to submit current comparables pursuant to 
          Section 2522.3 of the current Rent Stabilization Code; and that it 
          is unclear whether or not the tenant actually filed his complaint 
          prior to April 1, 1984.  Along with its petition, the owner 
          submitted inter alia a copy of a submission listing two comparable 
          apartments which it claims  to have previously submitted.

               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 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 fair market rent 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 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 a DC-2 Notice 
          or apartment registration form indicating that the rent is not 
          subject to challenge.

               The Commissioner finds that the owner was not prejudiced by the 
          Rent Administrator's refusal to grant the owner's extension request 
          of June 19, 1989 followed up by an extension request on June 29, 
          1989 and July 20, 1989.  It is noted that the owner and its attorney 
          were notified of the tenant's fair market rent adjustment 
          application in 1984, served with a copy of such application in 1985, 
          and certainly had ample time to formulate a response and /or request 
          DHCR rent control records in the four years from 1985 through 1989.

               Further, the Commissioner is of the opinion that JRD v. 
          Eimicke, 148 A.D. 2d 610, 539 N.Y.S. 2d 667 (App. Div. 2d Dept., 
          1989), is not applicable to this proceeding.  The change effected by 
          Section 14(g) of the Omnibus Housing Act and Section 26-516(g) of 
          the Rent Stabilization Law, as applied in the JRD case, only 
          involves rent overcharge proceedings, and does not apply to fair 





          market rent appeals.  Section 26-513 of the Rent Stabilization Law, 







          DH410407RO, SJR7170

          which deals with fair market rent appeals, continues to provide for 
          determination of fair market rent appeals from the date of the 
          initial stabilized tenancy.  Additionally, the Commissioner notes 
          that the JRD case is applicable in the Second Department only.  This 
          proceeding is in the First Department where the case of Lavanant v. 
          DHCR, 148 A.D. 2d 185, 544 N.Y.S. 2d 331 (App. Div. 1st Dept., 1989) 
          is the determinative authority.

               With regard to the owner's contention that it submitted 
          comparability data in the proceeding before the Rent Administrator, 
          there is no record in the Rent Administrator's file that such data 
          was in fact submitted and the owner has submitted no proof of such 
          earlier submission in its petition.  Accordingly, this data 
          submitted on appeal for the first time cannot be considered since 
          this is not a de novo proceeding.

               With regard to the owner's contention that it be afforded an 
          opportunity to submit comparability data in accordance with Section 
          2522.3 of the current Code, it is noted that such code provision 
          applies only to fair market rent appeals filed after April 1, 1984 
          and that the processing procedures outlined earlier in this decision 
          with regard to the submission of comparability data in fair market 
          rent appeals filed prior to April 1, 1984 were correctly applied in 
          this case.

               Finally, as to the owner's contention that it is unclear 
          whether the tenant's fair market rent appeal was filed prior to 
          April 1, 1984, the record including the cancelled post stamp on the 
          tenant's envelope indicates that the tenant filed his complaint on 
          March 31, 1984.

               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.

               The owner is directed to roll back the rent to the lawful 
          stabilized rent consistent with this determination 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.

               THEREFORE, in accordance with the provisions of the Rent 


          DH410407RO, SJR7170

          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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