EK 210313 RO

                                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. EK 210313 RO

                                          :  DISTRICT RENT OFFICE
                                             DOCKET NO. AE-210004-R
           Catherine Fontana,                
                                             TENANT: John Fiore               
            
                            PETITIONER    : 
      ------------------------------------X                             

          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                                     IN PART


      On November 28, 1990, the above-named petitioner-owner timely refiled a 
      Petition for Administrative Review against an order issued on October 
      25, 1990, by the Rent Administrator, Gertz Plaza, Jamaica, New York, 
      concerning the housing accommodations known as 105 Avenue P, Brooklyn, 
      New York, Apartment No. 6E, wherein the District Rent Administrator 
      determined the fair market rent pursuant to the special fair market rent 
      appeals.

      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 issues 
      raised by the administrative appeal.  

      This proceeding was originally commenced by the filing of a fair market 
      rent appeal application by the tenant.  The tenant took occupancy 
      pursuant to a lease commencing January 1, 1986 and expiring December 31, 
      1987 at a monthly rent of $425.00.

      In the order under appeal herein, the District Rent Administrator 
      adjusted the initial legal regulated rent by establishing a fair market 
      rent of $351.90 per month effective January 1, 1986, the commencement 
      date of the initial rent stabilized lease; and directed the owner to 
      refund to the tenant all excess rent.  The Administrator denied any 
      increases for improvements to the subject apartment based on the owner's 
      failure to submit bills and cancelled checks.

      In this petition, the owner contends that the Administrator's Order is 
      incorrect because the owner did submit proof of the installation of a 












          EK 210313 RO

      new refrigerator and electrical equipment installed in the subject 
      apartment while it was vacant prior to the tenant commencing his 
      tenancy.  The owner submitted a copy of its submission to the 
      Administrator date-stamped October 10, 1990 including bill and cancelled 
      checks for a new refrigerator at a cost of $368.00 and new electrical 
      equipment at a cost of $123.40.  The owner indicated that this 
      documentation had previously been submitted on July 5, 1990 as part of 
      the DHCR's request for information.  The owner also alleged that the 
      fair market rent appeal should not have been processed since the tenant 
      may not file a fair market rent appeal more than 90 days after the 
      tenant was served with the "appropriate papers" by the owner.  The owner 
      also contended that she submitted comparability data as an exhibit to 
      her July 5, 1990 response and that she is allowed to charge the tenant 
      a $5.00 per month surcharge for a window air-conditioner.

      The Commissioner is of the opinion that there petition should be granted 
      in part.  

      The owner has documented that during the proceeding before the 
      Administrator the owner submitted documentation of improvements to the 
      subject apartment which was not received or considered by the 
      Administrator.  The owner submitted a bill for a new refrigerator dated 
      December 30, 1985 at a cost of $368.00.  Accordingly, the owner's 
      entitled to an increase of $368.00 divided by 40 or $9.20, pursuant to 
      Section 2522.4 of the Code.  However, no increase if warranted for the 
      new electrical equipment at a cost of $123.40 because the bill is dated 
      January 28, 1986.  Since the new equipment was installed after the 
      tenant took occupancy on January 1, 1986, the owner would have had to 
      obtain the tenant's written permission to increase the rent pursuant to 
      Section 2522.4 of the Code.  This results is a lawful initial legal 
      regulated rent of $361.10 ($351.90 + $9.20) for the tenant's initial 
      lease term from January 1, 1986 to December 31, 1987.  The total excess 
      rent is $1,597.50 ($63.90 x 24 months = $1,533.60 + $63.90 excess 
      security = $1,597.50).

      Regarding the owner's assertion that the tenant's fair market rent 
      appeal was untimely, the owner failed to submit any proof of service 
      upon the tenant of the "appropriate papers" either before the 
      Administrator or an appeal.  The record indicates that the owner was 
      requested by the Administrator to submit proof of service of the DC-2 
      notice or initial apartment registration, but failed to do so.

      The record does not contain any July 5, 1990 submission from the owner 
      and the owner has failed to submit a date-stamped copy of this alleged 
      submission.  Accordingly, there is no comparability data to consider.  
      The record also indicates that the owner failed to raise the issue of a 
      $5.00 per month surcharge for an air conditioner before the 
      Administrator and therefore this issue cannot be raised for the first 
      time on the PAR level.
                                   
      The owner is directed to roll back the rent to the lawful stabilized 
      rents consistent with this decision and to refund or fully credit 






          EK 210313 RO

      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 this order, the tenant may credit the 
      excess rent collected by the owner against the next month(s) rent until 
      fully offset.

      Because this determination concerns lawful rents only through December 
      31, 1987, the owner is cautioned to adjust subsequent rents to an amount 
      no greater than that determined by this order plus any lawful increases 
      and to register any adjusted rents with this order and opinion being 
      given as the explanation for the adjustment.

      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, granted in part, and, that the order of the Rent 
      Administrator be, and the same hereby is, modified to the extent 
      hereinabove indicated.  The total amount of excess rent owed to the 
      tenant is $1,597.50, and the monthly lawful stabilization rent is 
      $361.10 effective January 1, 1986.


      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner




                 



























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