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
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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
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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.
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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
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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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