EA 410350 RO; EA 410009 RT
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 NOS. EA 410350 RO
EA 410009 RT
: DISTRICT RENT OFFICE
Luan Wag Realty DOCKET NO. ZL 3116228 RT
Gerard and Mary Somoza, TENANT: Gerard and Mary
ORDER AND OPINION DENYING OWNER'S PETITION FOR ADMINISTRATIVE REVIEW
AND GRANTING TENANT'S PETITION FOR ADMINISTRATIVE REVIEW
AND MODIFYING DRA'S ORDER
On January 3, 1990, the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on November 30, 1989,
by the Rent Administrator, 92-31 Union Hall Street, Jamaica, New York,
concerning the housing accommodations known as 452 West 57th Street,
New York, Apartment No. 2E, 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.
On January 4, 1990, the above-named petitioner-tenant filed a Petition
for Administrative Review against the aforementioned order. These
petitions are being consolidated for disposition herein.
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 Appeals are 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
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 appeals.
This proceeding was originally commenced in March 1984 by the filing of
a fair market rent adjustment application and a complaint of rent
EA 410350 RO; EA 410009 RT
overcharge by the tenant who took occupancy of the subject apartment
March 1, 1984 at rental of $1016.50 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
In response, the owner stated in substance that the tenant was the
second stabilized tenant in the subject apartment and was not entitled
to file a fair market rent application. As comparables, the owner cited
April 1, 1984 rents for apartments in the "W" line but did not submit
proof of service of the Initial Legal Registered Rent Notice (hereafter
RR1) with respect to any of these apartments nor a copy of the DC-2 form
which was served on the first nor any subsequent stabilized tenant of
the subject apartment. The owner further stated that the "W" line
apartments contained 6 rooms whereas the subject apartment in the "E"
line was 7 rooms but no "E" line apartments except the subject apartment
were rent stabilized. The owner submitted the initial lease of the
first rent stabilized tenant commencing July 1, 1982 though June 30,
1984 at a rental of $950.00.
In Order Number ZL 3116228 RT, the Rent Administrator adjusted the
initial legal regulated rent by establishing a fair market rent of
$433.58, effective July 1, 1988 and directing a refund of $13,272.25 to
the complainants for the period March 1, 1984 through February 28, 1986.
However, in the rent calculation chart, the initial legal regulated rent
was established at $433.58 effective July 1, 1982.
In its petition, the owner contends in substance that the Rent
Administrator failed to consider its comparability submission which
requested that an average of the 1984 rents for the rent stabilized
apartments be used in the comparability study. The owner resubmitted
the comparability submission originally submitted to the Rent
In answer to the owner's petition, the tenant stated in substance that
the owner never submitted proof of service of the DC-2 notice on any
tenants in the building and the tenant submitted an affidavit from the
prior tenant in the subject apartment disavowing receipt of the DC-2
In their petition, the tenants state in substance that the Rent
Administrator incorrectly cited the effective date of the initial lease
as July 1, 1988, rather than the correct date of July 1, 1982.
In response to the tenants' petition, the owner questioned the
timeliness of the tenants' petition and reiterated the contentions
stated in its own petition.
The Commissioner is of the opinion that the owner's petition should be
denied, the tenants' petition granted and the Rent Administrator's order
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
EA 410350 RO; EA 410009 RT
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 similiar 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 apartment 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.
An examination of the record in this case discloses that the owner's
comparability submission failed to meet the criteria for post-June 30,
1974 comparability in the following ways, any one of which would be a
sufficient reason for the Rent Administrator to disallow the submission:
A) The owner's citation of April 1, 1984 rents by the submission of
the RR1 forms for the "E" and "W" lines failed to disclose if these
rents were pursuant to leases commencing within one year of the
initial renting of the subject apartment.
B) No proof of service of either a DC-2 notice nor the RR1 forms was
submitted. Neither was there proof that these RR1 forms were
properly filed with DHCR since no record of registration prior to
1987 for the subject building is found in the DHCR Registration
C) By its own submission, the owner acknowledges that the "W" line
apartments are 6 rooms and therefore they are not comparable to the
subject apartment which contains 7 rooms.
The Commissioner rejects the owner's request that an average of the 1984
rents be used because that method does not meet the criteria for post-
June 30, 1974 comparability and the owner has failed to prove that those
rents are final rents by the submission of proof of service of the RR1
forms on the tenants.
The Commissioner, however, notes that the tenants' petition, which was
timely filed, correctly asserts that a typographical error in the
language of the order incorrectly stated July 1, 1988 rather than July
1, 1982 as the date of the initial lease and the effective date of the
establishment of the Initial Legal Regulated Rent.
Accordingly, the Rent Administrator's order is hereby modified to
correct the typographical error on page 2 by changing the date to July
Because this determination concerns lawful rents only through February
EA 410350 RO; EA 410009 RT
28, 1986, the owner is cautioned to adjust subsequent rents to an amount
no greater than that determined by the Rent Administrator's order plus
any lawful increases.
The owner is further 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.
If the owner does not take appropriate action to comply with this order
within sixty days from the date of issuance of this order, the tenant
may credit the excess rent against the next month(s) rent until fully
THEREFORE, in accordance with the provisions of the Rent Stabilization
Law and Code, it is
ORDERED, that the owner's petition for administrative review be, and the
same hereby is, denied, and that the tenants' petition for
administrative review be and the same hereby is, granted and, that the
order of the Rent Administrator be, and the same hereby is, modified to
state the correct effective date of July 1, 1982.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner