DJ 510260 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.: DJ 510260 RO
JOEL ARAGONA/WADSWORTH REALTY,
DRO DOCKET NO.: ZU 3124390 R
TENANT: DECELINA SANTIAGO
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 17, 1989, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
September 13, 1989 by the Rent Administrator, 92-31 Union Hall
Street Jamaica, New York, concerning the housing accommodations
known as 11 Wadsworth Avenue, New York, New York, Apartment No. 1A
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 initiated 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
issues raised by the administrative appeal.
This proceeding was originally commenced in March 1984 by the
filing of a rent overcharge complaint converted to a fair market
DJ 510260 RO
rent adjustment application by the First Rent Stabilized tenant who
took occupancy of the subject apartment on June 6, 1981 at a rental
of $350.00 per month.
The owner and prior owner were served with a copy of the tenant's
application and afforded an opportunity to submit June 30, 1974 or
post June 30, 1974 comparability data for determining the fair
market rent of the subject apartment and to submit proof of any
improvements made in the subject apartment.
Neither the current or prior owner submitted a response to notices
sent November 29, 1984, May 28, 1986, May 25, 1989 and June 16,
1989 affording the owners the opportunity to submit comparability
data. Nor did either owner interpose a response to a Summary
Notice dated July 17, 1989 and an amended Summary Notice dated
August 15, 1989 which indicated how the fair market rent would be
established and which indicated that comparability was not a factor
in the determination.
In Order Number ZU 3124390 R, the Rent Administrator adjusted the
initial legal regulated rent by establishing a fair market rent of
$237.35 using the Special Fair Market Guidelines only.
In this petition, the owner contends in substance that the Rent
Administrator failed to consider comparability submitted and that
the excessive security is erroneous because the security deposit
held is only $350.00. The owner failed to include a copy of such
a comparability submission or proof that it was served below.
In answer to the owner's petition, the tenant stated in substance
that no comparability data was submitted so she can't respond to
it.
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 Guideline 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 rental data for complete line 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
DJ 510260 RO
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.
An examination of the record in this case discloses that no
comparability submission was included in the file; numerous
opportunities to submit comparability were afforded the owners; the
notices sent to the current owner were addressed to the address as
shown in both the registrations on file with DHCR and in the
owner's petition; the owner has failed to include in its petition
either a copy of the alleged comparability submission nor proof
that such a submission was served on the Rent Administrator;
neither has the owner submitted proof that only $350.00 was held as
a security deposit, either below or on appeal.
Accordingly, the Rent Administrator's order was warranted.
Because this determination concerns lawful rents only through
September 30, 1989, 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.
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 tenant may credit the excess rent against the next month(s)
rent until fully offset.
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.
ISSUED:
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JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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