DL 110347 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.: DL 110347 RO
SEMINOLE REALTY COMPANY,
DRO DOCKET NO.: ZQ 3118805 R/T
TENANTS: VICKI BLANDIN,
MICHAEL BIANUCCI
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 2, 1990, the above-named petitioner filed a Petition
for Administrative Review against an order issued on November 30,
1989 by the Rent Administrator, 92-31 Union Hall Street, Jamaica,
New York concerning the housing accommodations known as 77-54
Austin Street, Apartment 3J, Forest Hills, New York wherein the
Administrator adjusted the initial legal regulated rent and
directed the owner to refund excess rent of $12,332.94.
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.
On March 31, 1984, the tenants commenced this proceeding with the
filing of a Fair Market Rent Adjustment application with the
former New York City Conciliation and Appeals Board. The tenants
stated they were entitled to challenge the Initial Legal
Regulated Rent because the prior tenant, who was the first
stabilized tenant had not been given an opportunity to challenge
the initial rent.
On December 17, 1984, the former owner (Hill Management) was
informed of the tenants' application challenging the initial
legal regulated rent and was requested to submit a copy of a DC-1
or DC-2 notice or the apartment registration form within ten
days. The owner was informed that failure to comply would result
in the continuation of the processing of the tenants
application.
The owner did not respond.
On August 19, 1985, the Division sent the owner a copy of the
tenant's Fair Market Rent Application along with a notice (Form
RTP-22) requesting submission of the DC-1 or DC-2 notice and
complete leases for the subject apartment from its base date and
notifying the owner of the methods used in determining fair
market rents.
DL 110347 RO
The owner did not respond.
On May 25, 1986, the tenants informed the Division that the
ownership of the subject building had changed effective April 1,
1984.
On December 8, 1988, a copy of the tenant's application and forms
RTP-22 and RTP-23 were sent to the current owner. Included with
these forms were worksheets to be completed by the owner for use
in the calculation of the fair market rent.
The owner did not respond.
On November 30, 1989, the Administrator issued the order here
under review, establishing the initial legal rent and directing
the owner to refund $12,332.94 inclusive of excess security.
In the petition, the current owner seeks to reverse the
Administrator's order. The owner contends that the tenants were
not entitled to file a Fair Market Rent Appeal because they were
not the first stabilized tenants. In support thereof, the owner
submits a set of leases from March 1, 1975 through March 31, 1982
signed by the prior tenant.
For its second argument, the owner contends that contrary to
established Division of Housing and Community Renewal (DHCR)
procedure, it was never sent a Notice of Pending Default or a
"Summary Letter" and thus was unable to determine that comparable
rents were necessary to substantiate the rental charged.
The owner further contends that the prior owner had entered into
an agreement with the tenants whereby the rent for the subject
apartment was established and the tenant agreed not to file any
complaints.
The tenants did not reply to the petition although afforded the
opportunity to do so.
The Commissioner is of the opinion that this petition should be
denied.
The subject apartment was formerly subject to the City Rent Law,
becoming subject to the Rent Stabilization Law by virtue of a
vacancy occurring on or after June 30, 1974.
Section 26-513 of the Rent Stabilization Law provides in
pertinent part that the tenant of a housing accommodation that
was regulated pursuant to the city rent and rehabilitation law
prior to July 1, 1971 and that became vacant on or after January
1, 1974 may file an application for adjustment of the initial
legal regulated rent for such housing accommodation. Where
vacancy decontrol occurred after June 30, 1974, only the first
stabilized tenant has the option of filing for an adjustment of
the initial legal regulated rent (a fair market rent adjustment)
if such tenant was properly notified of this right. If such
tenant moved before receiving notification, a subsequent tenant
may apply for the adjustment.
DL 110347 RO
Although the owner alleges that the prior tenant was the first
stabilized tenant and that such fact should preclude the
complainants from filing a fair market rent appeal, the
Commissioner notes that the owner has submitted no proof of
having served, as was required, a DC-2 notice either to the prior
tenant or to the current tenants. Accordingly, the Commissioner
finds that the Administrator correctly determined that the
current tenants were entitled to file a Fair Market Rent Appeal.
Review of the evidence of record in the instant case indicates
that the tenants' complaint along with answer forms and rent
forms to fill out providing the owner with the option to submit
either June 30, 1974 free market rents or rental data for
apartments recently rented on the post-ETPA "Free Market" was
sent to the owner. The owner has not denied receiving these
notifications. Although fully apprised of the procedures to be
followed and of which documents were required to be submitted,
the owner did not respond and has offered in this appeal no
reasonable excuse or justification for its failure to respond.
Accordingly, the Commissioner finds that the owner received
adequate notice of the proceeding below and had ample opportunity
to answer.
With respect to the agreement between the tenants and the former
owner, the Commissioner notes that Code Section 2520.13 provides
in pertinent part that an agreement by a tenant to waive the
benefit of any provision of the Rent Stabilization Law or Code is
void. Therefore, the Commissioner finds that the afore-mentioned
agreement between the former owner and the tenants which
established the apartment rent is a nullity.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is, denied
and the Rent Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
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ELLIOT SANDER
Deputy Commissioner
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