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

          APPEAL OF                              DOCKET NO. DI210184RO
               CAPE MANAGEMENT CORP.          :  DRO DOCKET NO. K3105440R
                                                 TENANT: JAMES ROBERSON
                                PETITIONER    : 

               On September 29, 1989, the above-named petitioner-owner filed 
          a Petition for Administrative Review against an order issued on 
          August 29, 1989, by the Rent Administrator, 92-31 Union Hall Street, 
          Jamaica, New York, concerning the housing accommodations known as 
          143 Linden Boulevard, Brooklyn, New York, Apartment No. 3A, 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 
               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 

               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 
          complaint in which he questioned the fair market rent.  Said 
          complaint was filed in March, 1984 and the tenant stated that he 
          first moved to the subject apartment as the first rent stabilized 
          tenant in August, 1983 at a rental of $450.00 per month.

               The owner was served with a copy of the tenant's complaint 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.  Regarding the request for comparability data, 
          the owner submitted a statement from a real estate broker as to 


          rents in the area of the subject premises and a copy of the real 
          estate section from the New York Times listing apartments renting in 
          the area of the subject premises

               In Order Number K3105440R, the Rent Administrator adjusted the 
          initial legal regulated rent by establishing a fair market rent of 
          $377.01 effective September 10, 1983.  The Rent Administrator also 
          directed that the owner refund excess rent of $5,883.42 to the 

               In this petition, the owner alleges in substance that the Rent 
          Administrator should have considered as adequate comparability data 
          the letter from the real estate broker listing rents of other 
          apartments in the area and the real estate listing from the New York 
          Times and that if this had been done, it would have been found that 
          the tenant was charged a fair market rent when he first moved to the 
          subject apartment.

               The Commissioner is of the opinion that this petition should be 

               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 rent 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.

               The record in this case discloses that the owner was afforded 
          an opportunity to submit comparability data as outlined above and 
          was specifically notified as to what data was required, but failed 
          to submit adequate documentation.  The letter from a real estate 
          broker and a real estate listing from the New York Times does not 


          conform with the above requirements.  Accordingly, the Rent 
          Administrator correctly did not consider any comparability data in 
          determining the fair market rent of the subject apartment.

               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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