STATE OF NEW YORK
                          OFFICE OF RENT ADMINISTRATION
                                   GERTZ PLAZA
                             92-31 UNION HALL STREET
                             JAMAICA, NEW YORK 11433

      APPEAL OF                              DOCKET NO. DG410157RO

           Jules Metroka,                 :  DISTRICT RENT OFFICE
                                             DOCKET NO. L3118264-R/T          
                                             TENANT: Judy and Richard
                            PETITIONER    : 


      On July 31, 1989, the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on July 10, 1989 by the 
      Rent Administrator, 92-31 Union Hall Street, Jamaica, New York, 
      concerning the housing accommodations known as 12 West 76th Street, 
      New York, New York, Apartment No. 2R, 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 issue herein is whether the Rent Administrator's order was 

      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 on March 29, 1984.  

      On December 12, 1984 the owner was informed that a fair market rent 
      appeal had been filed, and was instructed to provide proof of service of 
      a Notice of Initial Legal Regulated Rent (DC-2 notice) or Apartment 
      Registration (Form RR-1) on the tenant.  

      On August 15, 1985 the owner was sent a copy of the tenant's 


      application, and was again requested to submit proof of service of a DC- 
      2 notice or RR-1 form on the tenant.  This notice to the owner afforded 
      the owner an opportunity to submit comparability data and included a 
      detailed enumeration of the requisite documents for comparability 
      purposes.  In a response received by the DHCR on September 11, 1985, the 
      owner asserted that the rent was reasonably calculated based on rents 
      for similar apartments in the building and neighborhood and that he had 
      always treated the tenants fairly.  In support of his allegations, the 
      owner submitted copies of the Report of Statutory Decontrol. (Form R- 
      42), for the subject apartment, a rental history and leases for the 
      subject apartment.  The owner stated that he was including a list of 
      decontrolled rental amounts for a comparable apartments but the record 
      contains no such listing.

      On May 31, 1989 the owner was sent a Final Notice of Pending Default, 
      including a final request for the required documentation.  

      By submission received by the DHCR on June 20, 1989, the owner 
      reiterated that no overcharge had occurred and that since the Notice of 
      Decontrol (R-42) was served on the first stabilized tenant, the 
      complainant herein was not entitled to file a fair market rent appeal.  
      The owner claimed that the tenant's rent was modest compared to rents 
      for comparable apartments in the building and area and submitted leases 
      for 3 other apartments in the subject line and one apartment in another 
      line in the subject building.

      Under Docket Number L3118264-R/T, the Rent Administrator adjusted the 
      initial legal regulated rent by establishing a fair market rent of 
      $349.87 effective July 1, 1979, the commencement date of the initial 
      rent stabilized lease.  The Rent Administrator also directed that the 
      owner refund excess rent of $9,553.18 to the tenant.  The Administrator 
      determined that the owner's comparability data was inadequate and 
      determined the fair market rent based on the special guideline alone.

      In this petition, the owner alleges that since the first stabilized 
      tenant was personally served with a "DC-2 Decontrol Notice", it was 
      error to allow the complainants herein to file a fair market rent 
      appeal; that the order appealed from should have stated the reason the 
      comparables were unacceptable; and that the Administrator should not 
      have gone back more than four years in its computation of the 

      In response to the owner's petition, the tenant alleged that the order 
      contained a calculation error; that the owner had submitted no evidence 
      of service of the "DC-2 Decontrol Notice", that the claimants have met 
      the statutory criteria for processing a fair market rent appeal; that 
      despite the owner's assertion to the contrary, the DHCR was under no 
      duty to request any necessary additional information; and the owner may 
      not present additional data on appeal.  The tenant further assert that 
      the excess rents based on a fair market rent appeal may be calculated, 
      pursuant to Section 2526.1 of the Rent Stabilization Code, on a period 
      more than four years prior to the date of the complaint.  The tenant 
      further stated that treble damages should be awarded.  The owner did not 

      The Commissioner is of the opinion that this petition should be denied. 

      In the case under consideration, the owner (and his attorney) repeatedly 


      refer to the Notice of Decontrol, alleging that service of this form on 
      the first stabilized tenant bars the second stabilized tenant from 
      filing a fair market rent appeal.  The Commissioner finds that since the 
      owner failed to supply the requisite documentation of proof of service 
      of either the Initial Apartment Registration or the Notice of Initial 
      Legal Registered Rent on the first stabilized tenant, the second 
      stabilized tenant may properly file a Fair Market Rent Appeal.

      Section 26-513 of the Rent Stabilization Law provides, in pertinent 
      part, that fair market rent adjustment applications are to be determined 
      by the use of special fair market rent guidelines orders promulgated by 
      the New York City Rent Guidelines Board and by the rents generally 
      prevailing in the same area for substantially similar housing 
      accommodations.  In order to determine rents generally prevailing in the 
      same area for substantially similar housing accommodations, it is DHCR's 
      procedure for fair market rent appeal cases filed prior to April 1, 1984 
      to allow owners to submit June 30, 1974 fair market rental data for 
      complete lines of apartments, beginning with the subject line.  The 
      average of such comparable rentals will then be updated by annual 
      guidelines increases.  Alternatively, DHCR procedure allows owners to 
      have comparability determined on the basis of rents charged after June 
      30, 1974.  In order to use this method, owners were required prior to 
      November 1, 1984 to submit rental history data for all stabilized 
      apartments in the subject premises and subsequent to November 1, 1984 to 
      submit such data for complete lines of apartments beginning with the 
      subject line.  Post June 30, 1974 rent data will be utilized if the 
      comparable apartment was rented to a first stabilized tenant within one 
      year of the renting of the subject apartment and if the owner submits 
      proof of service of a DC-2 Notice or apartment registration form 
      indicating that the rent is not subject to challenge.

      Concerning the owner's contention that the order appealed from should 
      have stated the reason the comparables were unacceptable: the record 
      evidences that the Administrator notified the owner of the requisite 
      documents for comparability purposes.  Nevertheless, the owner failed to 
      provide data for complete lines of apartments beginning with the subject 
      line, including dates of decontrol, and failed to provide proof of 
      service of DC-2 or RR-1 notices.  Therefore, the Administrator properly 
      determined the fair market rent based solely on the special fair market 
      rent guideline. 

      With regard to the owner's contention that it should be required to 
      submit only rental data dating back four years at most, it is noted that 
      Section 26-513 of the Rent Stabilization Law, which deals with fair 
      market rent appeals, continues to provide for determination of the fair 
      market rent from the date of the initial stabilized tenancy. 
      Additionally, the owner was not required to submit comparability data 
      more than four years old, but had the option to do so.

      With regard to the tenant's assertion that the Administrator's order 
      contained a calculation error and that the tenant should be awarded 
      treble damages, the tenant failed to file a petition for administrative 
      review and may not raise such issues in response to the owner's 
      petition.  However, the Commissioner notes that Section 2526.1 of the 


      current Rent Stabilization Code, which provides for the imposition of 
      treble damages, does not apply to fair market rent appeals.

      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 

      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 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.


                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner


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