DF410263RO
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.DF410263RO
: DRO DOCKET NO.L3115158RT
MOSES WOLF TENANT: NISBET-NASH
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On June 28, 1989, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on June
7, 1989, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
401 East 91st Street, New York, New York, Apartment No. 4, 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 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
in March, 1984.
The owner was served with a copy of both the application and
the complaint and afforded an opportunity to submit a Notice of
Initial Legal Regulated Rent (hereafter DC-2 Notice) on the first
tenant who moved into the subject apartment after decontrol and
proof of service of the DC-2 Notice on the first rent stabilized
tenant. The owner was also directed to submit a complete rental
history for the subject apartment and afforded an opportunity to
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submit comparability data.
In a response dated May 6, 1989, the owner stated that the
tenant herein was not the first rent stabilized tenant and that the
subject apartment had become vacancy decontrolled from the Rent
Control Law and was rented to the first stabilized tenant on October
1, 1980. The owner submitted a rental history from October 1, 1980
and also submitted a copy of the Landlord's Report of Statutory
Decontrol (R-42 form) which he stated was served on the first rent
stabilized tenant. No copy of a DC-2 Notice was submitted.
In Order Number L3115158RT, the Rent Administrator adjusted the
initial legal regulated rent by establishing a fair market rent of
$288.76. The Rent Administrator also directed that the owner refund
excess rent of $9,980.74 to the tenant.
In this petition, the owner alleges in substance that the Rent
Administrator's order must be reversed because he submitted evidence
that both an R-42 form and a DC-2 Notice had been served on the
first rent stabilized tenant so that the tenant herein was not
entitled to file a fair market rent appeal; the consolidation of the
fair market rent appeal and the rent overcharge complaint confused
the owner so that he did not receive due process; and that the Rent
Administrator incorrectly computed the fair market rent on a default
basis contrary to the decision in JRD Management v. Eimicke which
limited the requirement to submit rent records to four years. Along
with his petition, the owner submitted a copy of a DC-2 form dated
September 25, 1980 with an alleged signature of the prior tenant on
the back of said form.
The tenant filed an answer to the owner's petition but later
withdrew such answer and stated that she was withdrawing her fair
market rent application "with prejudice to any claims for a rent
overcharge".
The Commissioner is of the opinion that this petition should be
denied.
With regard to the tenant's purported withdrawal of the
underlying complaint, it is noted that once the Rent Administrator's
order determining the complaint and fair market rent appeal was
issued, the tenant's subsequent withdrawal cannot be used as a basis
to revoke the Rent Administrator's order. Accordingly, the owner's
appeal must be determined on the merits. However if the tenant's
withdrawal was based on a settlement of arrearages between the
parties, the Commissioner notes that this would be a contractual
matter between the parties not within the purview of the Rent
Stabilization Law and Code, and not subject to the jurisdiction of
the DHCR. The Commissioner further notes that the rights of future
tenants pursuant to the Rent Administrator's order and the
Commissioner's order herein would remain unaffected by any such
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settlement.
Turning to the merits of the owner's petition, Section 26 of
the former Rent Stabilization provides that service of the DC-2 form
must be by certified mail. Section 25 of the former Rent
Stabilization Code provides that a tenant shall have 90 days from
service of the DC-2 form to file a fair market rent appeal.
In the instant case, the owner failed to submit a copy of the
DC-2 form along with proof of service in the proceeding before the
Rent Administrator although given an opportunity to do so. The
submission of the DC-2 form for the first time at the appeal level
cannot be considered since this is not a de novo proceeding.
Moreover, the owner submitted no proof of service of the DC-2 form
along with his appeal. Accordingly, the Rent Administrator
correctly did not dismiss the tenant's fair market rent appeal as
untimely. Further the fact that the tenant's fair market rent
appeal and rent overcharge complaint were processed in one
proceeding did not deprive the owner of due process. The owner was
afforded adequate opportunity to respond to the tenant's fair market
rent appeal and served a copy of such appeal.
Finally, 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 for
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. Accordingly, the Rent Administrator's order
was warranted.
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
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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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