STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X SJR 7422
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NO. EA410062RT
Schwarzberg/Gutfreund; Ivan Stux EA410326RO
and Deb Spohnheimer
: DRO DOCKET NO. ZL3117004R
ORDER AND OPINION REMANDING PROCEEDING FOR FURTHER PROCESSING
In January, 1990, the above-named prior-owners, present-owner
and the above-named petitioner-tenant timely filed Petitions for
Administrative Review against an order issued on December 20, 1989,
by the Rent Administrator, 92-31 Union Hall Street, Jamaica, New
York, concerning the housing accommodations known as 520 West End
Avenue , New York, Apartment No. 6 wherein the Rent Administrator
granted the tenant's Fair Market Rent Appeal (FMRA) and directed the
owners to refund $36,510.35 in excess rent.
Subsequent thereto, the petitioner-owner instituted a
proceeding in the Supreme Court, New York County, pursuant to
Article 78 of the Civil Practice Law and Rules in the nature of
mandamus for an expeditious determination of its petition.
The Administrative Appeal is being determined pursuant to the
provisions of the Rent Stabilization Law Code.
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 commenced on March 23, 1984 when the tenant
filed a complaint of rent overcharge in which she stated that she
had commenced occupancy on May 1, 1983 pursuant to a two year
sublease at an initial rental of $1225.00. The tenant also stated
that she believed that the prime tenant was an illusory tenant and
was acting with the owner to raise the rent above the rent
In answer to the complaint, the prior owner stated that the
subject apartment was rented to the prime tenant when it was
decontrolled and that the subject apartment had been remodeled at a
cost of $5000.00. The prior owner submitted a copy of an R-42,
Landlord's Report of Statutory Decontrol and the prime tenant's
initial and renewal leases.
While this matter was pending, the subject property was sold to
the current owner.
A copy of the tenant's complaint was served on the current
owner on February 10, l988.
In response thereto, the current owner produced a copy of an
order, purportedly issued by the Rent Administrator on December
5, 1984, terminating the proceeding.
DHCRcould find no record of this order as well as a similar
order purportedly issued on June 22, 1989 ever having been issued.
Accordingly, the processing of this proceeding continued.
In the order here under appeal, the Rent Administrator
determined that since the first rent stabilized tenant was an
illusory prime tenant, the complainant was entitled to a fair market
rent appeal as the first rent stabilized tenant. Establishing the
fair market rent, solely on the basis of Special Guidelines No. 14,
at $380.62 effective May 1,1983, the Administrator directed the
refund of $36,510.35 in excess rent through December 31, 1989.
In its appeal, the prior owner contends that the
Administrator's order should be reversed because:
1) there was a final order which determined that there was no
overcharge; since no appeal was taken of that order, the matter
should be closed;
2) the prior owners have been denied due process; they have not
been served with all submissions of the parties;
3) the Administrator erred in computing the fair market rent by
omitting the fuel passalong from the rent before applying the
special guidelines; not giving credit for $8000.00 in improvements;
or recognizing the unique features of the subject apartment;
4) the owner would have submitted comparability data if the request
had been made; the owner was not informed of the fair market
processing of the complaint.
In his appeal, the current owner contends that the order
herein should be considered a nullity as two prior orders dismissed
the proceeding in its entirety with no appeal filed. There is no
basis or authority for the Rent Administrator to reopen a long
terminated proceeding without notice and without stating any reason
therefore. Moreover the Administrator gave the owner no opportunity
to submit comparability data. Lastly, the order incorrectly assumes
that the tenant paid all the rent that was due.
In her appeal, the tenant contends that the Administrastor
erred in failing to award treble damages or attorneys fees as the
record substantiates the willfulness of the overcharge and the
entitlement to attorneys fees.
The Commissioner is of the opinion that this proceeding should
be remanded for further processing.
Review of the record discloses that prior to the issuance of
the order appealed herein, no other order was issued on this matter
by the Rent Administrator.
Review of the record further discloses that none of the
parties was notified that the instant complaint would be processed
as a fair market rent appeal. Accordingly, the Commissioner finds
that the matter should be remanded to enable the parties to submit
the required comparability data for a fair market rent appeal filed
prior to April 1,1984.
Therefore, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
Ordered, that this proceeding be, and the same hereby is,
remanded for further processing in accordance with this order and
opinion. The automatic stay of so much of the Rent Administrator's
order as directed a refund is hereby continued until a new order is
issued upon remand. However, the Rent Administrator's determination
as to the rent is not stayed and shall remain in effect, except for
any adjustments pursuant to lease renewals, until the Administrator
issues a new order upon remand.
JOSEPH A. D'AGOSTA