EA 110348 RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. EA 110348 RO
: DISTRICT RENT OFFICE
SS and C Properties, DOCKET NO. ZQ 3108393 T
TENANT: Virgil Feliciano
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND REMANDING PROCEEDING ON APPEAL
On January 18, 1990, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
August 10, 1989, by the Rent Administrator, Gertz Plaza, Queens,
New York, concerning the housing accommodations known as 83-09 35th
Avenue, Queens, New York, Apartment No. B31, wherein the Rent
Administrator determined the fair market rent pursuant to the
special fair market rent guidelines promulgated by the New York
City Rent Guidelines Board for use in calculating fair market rent
A review of the records discloses that the owner's agent as
registered with the agency (Michael J. Savino) was not served a
copy of the order. Further, the owner submitted 3 affidavits to
the effect that no order was received at the owner's office in
August 1989 and that the owner was first made aware of the order
appealed herein in a summary proceeding filed in civil court on
December 29, 1989.
Taking the aforementioned in to account, the Commissioner deems the
January 18, 1990 filing of the Petition for Administrative Review
by the owner as timely.
During the pendency of this proceeding the tenants vacated the
subject apartment but forwarded their current address.
The Administrative Appeal is being determined pursuant to the
provisions of Section 26-513 of the Rent Stabilization Law.
The issue herein is whether the Rent Administrator's order was
EA 110348 RO
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 originally commenced in January 1985 by the
filing of a fair market rent adjustment application (hereafter
FMRA) by the tenant who took occupancy of the subject apartment on
April 1, 1984 at a rental of $420.31 per month.
The owner was served with a copy of the tenant's application 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 and to submit proof of any improvements made in
the subject apartment.
The owner failed to interpose a response to either the FMRA notice
or summary notice.
In Order Number ZQ 3108393 T, the Rent Administrator adjusted the
initial legal regulated rent by establishing a fair market rent of
$314.99 effective April 1, 1984.
In this petition, the owner contends in substance that the
apartment was decontrolled November 30, 1971 and rented on December
1, 1971 so that the tenant had no statutory basis to file a FMRA.
In support of its contention, the owner submitted the following:
(1) a copy of the landlord's Report of Statutory Decontrol (R42)
under docket 2DR 17133 indicating November 30, 1971 as the
decontrol date. (2) copies of an application for lease and lease
commencing December 1, 1971 through November 30, 1973.
In answer to the owner's petition, the tenant stated in substance
that the petition was untimely and that the owner failed to submit
the above documentation during the processing of the complaint.
The Commissioner is of the opinion that this petition should be
granted and that the proceeding should be remanded so that the
tenant's complaint can be processed as a complaint of rent
overcharge from the base date of April 1, 1980 rather than a fair
market rent appeal.
An examination of DHCR records in this case discloses that the
owner is correct in its contention that the subject apartment was
decontrolled in November 1971 and is not eligible for a FMRA. The
Maximum Base Rent Building Profile issued February 1974 for rents
effective January 1, 1972 failed to list the subject apartment
(B31) as rent controlled. Furthermore, the Rent Stabilization
rider annexed to the vacancy lease submitted by the tenant with his
application indicated that the prior tenant was rent stabilized at
a rent of $356.92. The registration card indicates a decontrol
prior to January 1, 1974 and the Report of Statutory Decontrol
EA 110348 RO
indicates that the subject apartment was vacancy decontrolled in
November 1971. Since the aforementioned evidence are part of DHCR
records available to the Rent Administrator, they should have been
considered during the course of the proceeding before the Rent
Further, evidence in the Agency file discloses that on May 1, 1986
the tenant had also filed a complaint of rent overcharge under
Docket AE 110127 R. On August 15, 1991, that docket was closed
without action because the rent had been established and subsequent
rents calculated under the order appealed herein which was then
pending Administrative Review under the instant docket.
Accordingly, this proceeding is being remanded to treat the
tenant's complaint as a rent overcharge complaint. All parties are
to be notified and given a chance to submit evidence in such
remanded proceeding including evidence as to whether the
complainant was served with the required initial apartment
registration and whether a timely overcharge complaint to rent
registration had been filed. Evidence previously submitted in
docket AE 110127 R should be considered and the Rent Administrator
may reopen such docket for consideration on the merits.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that this petition be, and the same hereby is, granted, to
the extent of remanding this proceeding to the District Rent
Administrator for further processing in accordance with this order
and opinion. The Administrator's order is hereby revoked. Any
arrears owed by the tenant as a result of this order shall be paid
by the tenant to the owner in equal monthly installments over the
course of the next twelve months.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
EA 110348 RO