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
APPEALS OF DOCKET NO.EH110017RO
DRO DOCKET NO.Q003377R
ELYAS BOKHOUR AND
ORDER AND OPINION GRANTING PETITIONS FOR ADMINISTRATIVE REVIEW IN
On August 2, 1990, and August 3, 1990 the above-named
petitioner-owner and tenant filed Petitions for Administrative
Review against an order issued on June 29, 1990, by the Rent
Administrator, 92-31 Union Hall Street, Jamaica, New York,
concerning the housing accommodations known as 45-16 48 Street,
Queens, New York, Apartment No. 3R 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 Administrative Appeals are being determined pursuant to the
provisions of Section 2522.3(e) and Section 2522.4 of the Rent
Stabilization Code and are being consolidated for disposition
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 August, 1985, by
the filing of a rent overcharge complaint by the tenant in which the
tenant was questioning her initial rent and stated that the prior
tenant had been in occupancy since 1959.
The Rent Administrator's staff advised the parties that the
complaint would be treated as a fair market rent appeal (hereafter
FMRA) and sent both the prior owner and the owner herein the
standard fair market rent package affording them the opportunity to
submit comparability data and advising them of what comparability
data was required. The prior owner and owner herein were also
directed to submit proof of any claimed improvements made in the
Regarding comparability, the prior owner stated that the
subject apartment was the only renovated apartment in the subject
premises but that equivalent apartments in the area rent from $600
to $710 per month. In support of such contention, the prior owner
submitted a September 15, 1985 copy of a New York Times real estate
Regarding improvements, the prior owner in a submission dated
and postmarked March 26, 1990, submitted bills and cancelled checks
for claimed improvements made in the subject apartment immediately
prior to occupancy by the tenant herein. However this submission
did not reach the Rent Administrator's file before the issuance of
the order herein.
In Order Number Q003377R, the Rent Administrator adjusted the
initial legal regulated rent by establishing a fair market rent of
$261.20 effective August 30, 1984. The fair market rent was
determined solely on the basis of the special fair market rent
guideline and no allowance was given for any improvements. In
addition, the Rent Administrator found that the tenant had paid
excess rent totalling $11,773.25 from August 30, 1984 through
December 31, 1988.
In the tenant's petition, the tenant contends in substance that
the Rent Administrator's order should be updated from January 1,
1989 through June 30, 1990.
In answer to the tenant's petition, the current owner stated in
substance that the tenant's petition lacks sufficient documentation
with which to support the tenant's allegations.
In the owner's petition, the owner alleges in substance that
the owner should have received credit for the renovation work done
in the subject apartment in the determination of the fair market
rent and that the comparability data submitted by the owner
consisting of the New York Times real estate listing and the fact
that the apartment had been renovated should have been considered.
The Commissioner is of the opinion that these petitions should
be granted in part.
Pursuant to Section 2522.3(e) of the Rent Stabilization Code,
comparability will be determined based on the following:
(1) Legal regulated rents, for which the time to file a Fair
Market Rent Appeal has expired and no Fair Market Rent Appeal is
then pending, or the Fair Market Rent Appeal has been finally
determined, charged pursuant to a lease commencing within a 4 year
period prior to, or a one year period subsequent to, the
commencement date of the initial lease for the housing accommodation
(2) At the owner's option, market rents in effect for other
comparable housing accommodations on the date of the initial lease
for the housing accommodations involved as submitted by the owner.
Section 2522.4 of the Rent Stabilization Code permits a rent
increase equal to one-fortieth the cost of new equipment and tenant
consent for such increase is not required if the installation was
made during a period when the subject apartment was vacant.
In the instant case, regarding the owner's contention that
comparability should have been considered, it is noted that the
owner and prior owner did not submit usable comparability data
pursuant to Section 2522.3(e) as outlined above although afforded an
opportunity to do so and advised as to what constituted an adequate
submission. Rather all that was submitted was a real estate listing
from the New York Times which was not sufficient.
Regarding the owner's contention that it was entitled to a rent
increase for improvements, the Commissioner notes that the owner did
submit copies of bills and cancelled checks for improvements in the
proceeding before the Rent Administrator, but that such submission
did not reach the file and was not considered by the Rent
Administrator. Accordingly, such submission will be considered
herein. The owner submitted the following bills and cancelled
checks for items installed immediately prior to occupancy by the
tenant herein which will be allowed:
1) $1465.00 for bathroom and kitchen renovation including removal of
toilet and installation of new one, installation of shower body and
necessary piping and fittings, installation of kitchen sink, kitchen
cabinets and custom made formica top.
2) $216.50 for installation of new bathtub and new bathroom sink.
The total allowance is $1465.00 plus $216.50 equals $1681.50
divided by 40 equals a total rent increase of $42.04.
The following items submitted are not items for which a rent
increase is warranted since they consist of ordinary repairs and
maintenance and/or the bill was not sufficiently broken down to
determine the specific cost of certain items or the specific work
3) $1636.00 for repair of windows, plastering and painting and
putting new tile on walls and floor of bathroom and new marble
saddle; repaired all wooden windows sash chains and replaced broken
glass and broken storm windows; removed ironing board door in
kitchen and repaired it with plaster board; completely plastered and
painted entire apartment.
With regard to the tenant's contention that the excess rent
determination should be updated to the date of the Rent
Administrator's order, the Commissioner is of the opinion that the
tenant is correct. An examination of the records in this case
discloses that the tenant was not asked to update the rental history
in the proceeding before the Rent Administrator so that this
contention may be considered for the first time on appeal. It is
noted that the tenant listed contradictory rental information in her
petition and that the owner did not answer such appeal with updated
rental information of its own. Accordingly, the Commissioner has
used the annual registration information submitted by the owner to
update the rent through the date of the Rent Administrator's order.
Taking the above factors into account, the Commissioner has
recalculated the lawful stabilization rents and the amount of excess
rent owed the tenant. The lawful stabilization rents and the amount
of excess rent are set forth on the amended rent calculation chart
attached hereto and made a part hereof.
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 determination 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
If the owner has already complied with the Rent Administrator's
order and there are arrears due to the owner as a result of the
instant determination, the tenant shall be permitted to pay off the
arrears in twelve equal monthly installments. Should the tenant
vacate after the issuance of this order or have already vacated,
said arrears shall be payable immediately.
In the event the owner does not take appropriate action to
comply with this order 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
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that these petitions for administrative review be, and
the same hereby are, granted in part, and, that the order of the
Rent Administrator be, and the same hereby is, modified in
accordance with this order and opinion. The lawful stabilization
rents and the amount of excess rent are established on the attached
chart which is fully made a part of this order. The amount of
excess rent through June 30, 1990 is $13,154.29.
JOSEPH A. D'AGOSTA