DL410098RT

                                  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 
          IN THE MATTER OF THE ADMINISTRATIVE    ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO.: DL410098RT

               MICHAEL AND ANGELITA FORWELL,     DRO DOCKET NO.:ZTA10810

                                                 OWNER:  MURRAY CHASE
                                   PETITIONERS    
          ------------------------------------X                             

            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                                         AND
                         MODIFYING RENT ADMINISTRATOR'S ORDER


          On December 13, 1989, the above-named petitioner-tenant filed a 
          Petition for Administrative Review against an order issued on 
          November 15, 1989 by the Rent Administrator, 92-31 Union Hall 
          Street Jamaica, New York, concerning the housing accommodations 
          known as 161 West 106th Street AKA 941 Amsterdam Avenue, New York, 
          New York Apartment No. 5E, 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 but 
          incorrectly stated that the Tenants' Fair Market Rent Appeal 
          (hereafter FMRA) was dismissed.

          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 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 originally commenced in December 1982 by the 
          filing of a fair market rent adjustment application by the tenant 
          who took occupancy of the subject apartment on January 15, 1982 at 
          a rent of $425.00 per month.








          DL410098RT

          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 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 cited comparable apartments 1E, 2E, 3E and 
          4E within the subject line but these apartments could not be 
          considered as they were all rent-controlled.  In addition, 
          apartment 5S and 2S could not be considered as the owner had failed 
          to provide the DC-2 or RR1 notices for these 2 apartments in the 
          subject building and also failed to provide the DC-2 or RR1 for 
          various comparable apartments cited in other area buildings.
               
          In Order Number ZTA10810, the Rent Administrator adjusted the 
          initial legal regulated rent by establishing a fair market rent of 
          $214.70 (excluding comparables and new equipment) but incorrectly 
          stated that the tenant's FMRA was dismissed because the Fair Market 
          Rent exceeded the challenged and initial rent.  The $425.00 rent 
          that the tenants paid was incorrectly listed as the Fair Market 
          rent rather than $214.70.

          The tenants vacated the subject apartment in January 1986 but 
          forwarded a current address.

          In this petition, the tenants contend in substance that a clerical 
          error, specifically the reversal of the figures representing the 
          Fair Market of $214.70 with the challenged initial rent of $425.00 
          resulted in the dismissal of their FMRA but that it is apparent 
          from the Calculation Chart annexed to the order that the rent had 
          been adjusted and a refund of $5,047.20 was due the tenants; that 
          the facts in the order indicate that the correct decision was a 
          grant of their FMRA and not a dismissal because the tenants met the 
          criteria for filing a FMRA; the owner failed to submit useable 
          comparable rents, the owner's claim to a rent increase for a MCI 
          was disallowed and that their initial rent of $425.00 exceeds the 
          1980 MBR increased by Special Guideline 13.

          In answer to the tenants' petition, the owner stated in substance 
          that the FMRA was properly dismissed as without merit; that the 
          tenants had vacated the subject apartment in January 1986 and 
          executed a surrender agreement in consideration of $1,232.63 paid 
          to the tenants and a waiver of rent claims through January 16, 
          1983; that the agreement served as a mutual release of all claims 
          including the instant complaint filed in 1982 and further that the 
          Rent Administrator failed to consider the owner's comparability 
          submission.

          With its response, the owner included copies of the surrender 
          agreement dated January 16, 1986 which indicated that $232.63 was 
          to be paid to the tenants as the balance of their remaining 
          security deposit and a cancelled check payable to the tenants from 
          the owner for $232.63.

          The Commissioner is of the opinion that this petition should be 
          granted and the Rent Administrator's order amended to reflect the 
          correct determination.



          DL410098RT

          An examination of the records in this case discloses that the 
          tenants are correct in their contention that a clerical error 
          resulted in a dismissal of their FMRA although the rent of $214.70 
          established as the Initial Legal Regulated Rent was lower than 
          their initial rent of $425.00 and therefore the order should be 
          amended so that the language of the order reflects the correct 
          determination.

          The Commissioner rejects as without merit the owner's claim that 
          the tenant's executed a general release upon vacating the subject 
          apartment in January 1986 withdrawing their complaint.  A review of 
          the surrender agreement discloses that the tenants did not withdraw 
          their pending complaint with DHCR and that the sum paid to the 
          tenants was $232.63 for the return of Security deposit and not a 
          consideration of $1,232.63 as stated by the owner.

          Furthermore, pursuant to Section 2520.13 of the current Rent 
          Stabilization Code and Section 11 of the former code, the tenants 
          may not waive their rights under the Code.

          With regard to the owner's contentions in response to the tenant's 
          petition concerning comparability submissions, the Commissioner 
          notes that the owner submitted incomplete comparability data, so 
          that the Rent Administrator properly did not consider it.

          Accordingly, the Rent Administrator's order is amended to reflect 
          that the tenants' FMRA is granted and that the Initial Legal 
          Regulated Rent is adjusted from $425.00 to $214.70 effective 
          January 15, 1982, the date of the initial stabilized lease.

          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 increase.














          THEREFORE, in accordance with the Rent Stabilization Law and Code, 
          it is

          ORDERED, that this petition for administrative review be, and the 
          same hereby is, granted, that the order of the Rent Administrator 
          be, and the same hereby is, affirmed as modified by this order and 







          DL410098RT

          opinion. 

          The amount of excess rent owed the tenants herein is $5,047.20.  A 
          copy of this order is being served on the current occupants of the 
          subject apartment.




          ISSUED



                                                                      
                                          JOSEPH A. D'AGOSTA
                                          Acting Deputy Commissioner
    

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