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

          ------------------------------------X 
          IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO.DF410263RO
                                              :  DRO DOCKET NO.L3115158RT
               MOSES WOLF                        TENANT: NISBET-NASH
                                PETITIONER    : 
          ------------------------------------X                             
             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 









          DF410263RO




          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 






          DF410263RO


          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 







          DF410263RO

          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







                     































    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name