FE420013RO
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. FE420013RO
: DRO DOCKET NO.ZL002807R
515 REALTY CORP. TENANT: JOHN J. FERRON
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 1, 1991, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on March
28, 1991, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
515 East 83rd Street, New York, New York, Apartment No. 3B, 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.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2522.3 of the Rent Stabilization Code.
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 issue raised by the administrative appeal.
This proceeding was originally commenced on July 8, 1985, by
the tenant's filing of a rent overcharge complaint in which the
tenant stated in substance that he had moved to the subject
apartment in April, 1985; that the prior tenant had lived in the
subject apartment for a long time and that he questioned if the
owner had calculated his rent correctly. In response, the owner
stated that the last tenant prior to occupancy was rent controlled
and that the tenant herein was the first tenant to occupy the
subject apartment after it was decontrolled.
The owner was advised that the tenant's complaint was being
treated as a fair market rent appeal and afforded an opportunity to
submit comparability data for use in determining the fair market
rent. There is nothing in the record to show that the owner
submitted any comparability data.
In Order Number ZL002807R, the Rent Administrator adjusted the
initial legal regulated rent by establishing a fair market rent of
$407.10 effective April 1, 1985, the commencement date of the
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initial rent stabilized lease. The fair market rent was determined
solely on the basis of the special fair market rent guideline. In
addition, the Rent Administrator determined that the tenant had paid
excess rent of $44,535.26 through March 31, 1991, and directed the
owner to refund such excess rent to the tenant.
In this petition, the owner alleges in substance that the owner
supplied the DHCR with all pertinent data on or about December 20,
1986; that the DHCR is required to examine rents charged for
comparable apartments in the same building or neighboring buildings
at the time the complaining tenant's apartment became subject to
rent stabilization; and that the Rent Administrator's order should
be reversed because comparability was not used in the determination
of the fair market rent. In support of its contentions, the owner
submitted copies of apartment registrations and leases for various
apartments including some apartments in the subject premises.
The Commissioner is of the opinion that this petition should be
denied.
Pursuant to Section 2522.3(e) of the Rent Stabilization Code,
applicable to fair market rent appeals filed after April 1, 1984,
comparability will be determined based on the following:
(1) Legal regulated rents, for which the time to file a Fair Market
Rent Appeal has expired and no Fair Market Rent Appeal is then
pending, or the Fair Market Rent Appeal has been finally determined,
charged pursuant to a lease commencing within a four year period
prior to, or a one year period subsequent to, the commencement date
of the initial lease for the housing accommodation involved; and
(2) At the owner's option, market rents in effect for other
comparable housing accommodations on the date of the initial lease
for the housing accommodations involved.
Further it is agency policy for owners to submit data for
complete lines of apartments including the subject line.
In the instant case, it is noted that the above requirements on
comparability were explained in the instructions sent to the owner.
The file does not reveal any submission by the owner including
comparability data as alleged by the owner on appeal. Further,
since this is not a de novo proceeding, evidence submitted for the
first time on appeal cannot be considered absent good cause shown
for the failure to submit such material below. In any event, the
material submitted by the owner on appeal does not meet the
aforementioned criteria as required for acceptable comparables
pursuant to Section 2522.3(e). The owner did not establish that the
apartments cited on appeal were rent stabilized apartments which
were rented to a first stabilized tenant during the appropriate
period or any proof that the tenants of such comparable apartments
had been served with a Notice of Initial Legal Regulated Rent or
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Initial Apartment Registration. Finally, it is the owner's
responsibility to submit comparability data if it chooses and the
DHCR is under no obligation to find comparable apartments for an
owner. Accordingly, the Rent Administrator's order was warranted.
The owner is directed to roll back the rent to the lawful
stabilized rent consistent with this decision and to refund or fully
credit 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 issuance of this
order, the tenant may credit the excess rent collected by the owner
against the next month(s) rent until fully offset.
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 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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