DI210184RO
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. DI210184RO
CAPE MANAGEMENT CORP. : DRO DOCKET NO. K3105440R
TENANT: JAMES ROBERSON
PETITIONER :
------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
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
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
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
DI210184RO
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
tenant.
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
denied.
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
DI210184RO
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
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
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
DI210184RO
|
