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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.EA410130RO
: DRO DOCKET NO.TA2378
95 River Company TENANT:Nicholas Cobbs
PETITIONER :
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ORDER AND OPINION DENYING OWNER'S PETITION FOR ADMINISTRATIVE
REVIEW
On January 22, 1990, the above-named owner filed a Petition for
Administrative Review against an order issued on December 27, 1989
by a Rent Administrator concerning housing accommodations known as
Apartment 19-L,230 Riverside Drive, New York, New York, wherein the
Rent Administrator determined the fair market rent pursuant to a
comparability study and the special fair market rent guidelines
promulgated by the New York City Rent Guidelines Board for use in
calculating fair market rent appeals.
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.
The Commissioner notes that this proceeding was initiated 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, any reference in this order and opinion to
Sections of the Rent Stabilization Code is to the Code in effect on
April 30, 1987.
The proceeding was initiated by the tenant on January 3, 1975 by
filing a fair market rent appeal. The tenant took occupancy
pursuant to a one year lease commencing May 1, 1974 and expiring
April 30, 1975 at a monthly rent of $285.00.
In a submission dated March 19, 1979, the owner cited apartments
4L, 9L, 11L and 15L, without a terrace, in the subject building to
be used for comparability study and included a June 30, 1974 rent
EA410130RO
EA410130RO
roll for the subject line. However, the owner contended that the
subject apartment was unique in that it was the only apartment with
a terrace and three views.
By notice dated September 13, 1989, the owner was afforded an
opportunity to submit June 30, 1974 or updated comparability data.
By notice dated October 13, 1989, the owner was more specifically
afforded an opportunity to submit June 30, 1974 or updated
comparables for any decontrolled 3-room apartments with a terrace
in the vicinity.
By letter dated October 27, 1989, the owner requested an extension
of time to respond. The Administrator did not respond to this
request. A second request for an extension, dated December 6,
1989, was denied by letter dated December 8, 1989. However, this
letter was sent to the owner's attorney at an incorrect address and
was returned to the DHCR by the post office. In its extension
requests, the owner contended that its rent records were sealed by
the court in a tax evasion proceeding, that with the conclusion of
the trial the documents would be made available, but that it would
take some time to locate and return the relevant documents.
In Order Number TA2378, issued on December 27, 1989, the Rent
Administrator established the initial lawful stabilized rent as
$272.67 per month effective May 1, 1974, and calculated excess rent
in the amount of $147.96. The Administrator utilized apartments
4L, 9L and 11L in the comparability study in determining the fair
market rent.
In its petition the owner contends that the DHCR never notified the
owner or the owner's attorney that the second request for an
extension was denied, thereby violating the owner's due process
rights. The owner also states that the necessary files are still
sealed and that an extension of time is required to permit the
owner to search for and submit the necessary data at the conclusion
of the ongoing court proceeding.
The Commissioner is of the considered opinion that this petition
should be denied.
Section 2529.6 of the Rent Stabilization Code provides that a
review pursuant to this part should be limited to facts or evidence
before a Rent Administrator as raised in the petition. Where the
petitioner submits with the petition certain facts or evidence
which he or she establishes could not reasonably have been offered
or included in the proceeding prior to the issuance of the order
being appealed, the proceeding may be remanded for redetermination
to the Rent Administrator to consider such facts or evidence.
In the instant case, the owner claims that its due process rights
were denied by the Administrator's failure to notify the owner of
EA410130RO
the denial of its request for an extension of time to submit
comparability data. The December 8, 1989 denial notice, which
stated that a determination would be made based on the evidence in
the record, was not received by the owner's attorney. However, the
owner has failed either in its communications to the Administrator
or on Administrative appeal to document its allegation that
additional comparability data could not have been timely submitted
due to the sealing of rent records during a court proceeding. In
addition, it is noted that comparability data submitted by the
owner was used by the Administrator in determining the fair market
rent and that no additional comparability data has been submitted
by the owner to date. The Commissioner therefore finds that there
has been no denial of due process in this case, and that the
owner's petition should be denied.
The tenant vacated the subject apartment in July 1981. A copy of
this order and opinion is being sent to the current occupant of the
subject apartment.
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
determinations 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 increases.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that the owner's petition be and the same hereby is,
denied, and that the Administrator's order be and the same hereby
is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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