EB110322RO
                         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. EB110322RO

       Saul Miller                    :  DISTRICT RENT ADMINISTRATOR'S
                                         DOCKET NO. Q3121900R
                                        
                                         TENANT: Steven Schenkel     
                        PETITIONER    : 
  ------------------------------------X                             

           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

  On February 25, 1990, the above-named owner refiled a petition for administrative 
  review of an order of a Rent Administrator issued on December 13, 1989, concerning 
  the housing accommodations known as the upper apartment at 84-48 Kew Gardens Road, 
  Kew Gardens, New York, 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.

  This proceeding had been commenced by the tenant's complaint of overcharge, filed 
  in March 1984, in which he alleged that his tenancy had commenced on September 15, 
  1979, with a two-year lease at a monthly rental of $375, and that that lease had 
  had no rental-history rider appended to it.  In response to the tenant's complaint, 
  the owner indicated that the tenant was the first Rent Stabilized tenant.

  In a memorandum dated April 12, 1989, the DHCR informed the owner of its 
  opportunity--in connection with the determination of the initial lawful stabilized 
  rent of the apartment--to submit evidence of rents prevailing for similar 
  apartments in the same area, for the DHCR's use in a "comparability study"; the 
  memorandum further stated that if those rents were for any time after July 1, 1974, 
  the owner also had to "submit proof of service of an Initial Legal Regulated Rent 
  Notice (DC-1 Notice) or . . . of the Apartment Registration Form (RR-1) for each 
  apartment."  In response the owner submitted copies of rent rolls indicating post- 
  1984 rentals of various apartments, along with the tenant's names and (written in 
  by the owner) the date that each stabilized apartment had ceased to be rent- 
  controlled.

  The ensuing order, here appealed, states in pertinent part:



       The Emergency Tenant Protection Act of 1974, as amended by Chapter 403 
       of the Laws of 1983, directs that the Fair Market Rent be determined on 
       the basis of 2 criteria:  (1) a special guidelines order promulgated by 
       the New York City Rent Guidelines Board solely for use in determining 
       Fair Market Rents; and  (2) by "rents generally prevailing in the same 
       area for substantially similar housing accommodations, "language 
       commonly referred to as "comparability".


                                       * * *







       EB110322RO


       With respect to the second statutory criterion (the comparability test), 
       since the owner has furnished neither usable June 30, 1974 rent data nor 
       the rental history data required for consideration of updated 
       comparables, the Fair Market Rent will be determined solely on the basis 
       of the Special Fair Market Rent Guidelines.

  The instant petition states that the Administrator "ignored comparability," in that 
  the "submitted rent rolls . . . show what other four room apartments paid when this 
  tenant moved in."

  The  Commissioner is of the opinion that this petition should be denied.

  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 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 similar housing 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 rent data for complete lines of 
  apartments, beginning with the subject line.  The average of such comparable 
  rentals will than 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 apartments 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 DC-2 Notice or apartment 
  registration form indicating that the rent is not subject to challenge.

  For assertedly-comparable rents to be considered, they must--as indicated above-- 
  no longer be subject to challenge.  The owner has the burden of showing either that 
  the appropriate notice (DC-2 or RR-1) was served on the tenant of each comparable 
  apartment without the latter's having timely objected to the rent, or that any such 
  objection was resolved in the owner's favor.  Because the owner failed to submit 
  this evidence although afforded an opportunity to do so, the Administrator 
  correctly refused to consider comparability data in determining the fair market 
  rent.  Accordingly, the Rent Administrator's order was warranted.

  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.

  The owner is directed to roll back the rent to the lawful stabilized rent 
  consistent with this determination and to refund the excess rent collected by the 
  owner - $9,188.38.  In the event the owner does not take appropriate action to 
  comply within sixty (60) days from the date of issuance of this order, the tenant 
  may seek to enforce this order by filing an appropriate action in a court of 
  competent jurisdiction.  A copy of this order is being sent to the tenant currently 
  in occupancy at the subject apartment.




       EB110322RO


  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, 
  denied, and, that the order of the Rent Administrator be, and the same hereby is, 
  affirmed.



  ISSUED:


                                                                
                                  JOSEPH A. D'AGOSTA
                                  Deputy Commissioner













    

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