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
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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 :
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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".
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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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