Docket Number: FA 210345-RT
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FA 210345-RT
YEFIM VIRKERMAN, DISTRICT RENT ADMINISTRATOR'S
DOCKET NOS.: EE 210032-RP
PETITIONER : (K-002558-R)
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND MODIFYING ADMINISTRATOR'S ORDER
On January 30, 1991 the above-named petitioner-tenant filed a
Petition for Administrative Review against an order of the Rent
Administrator issued January 2, 1991. The order concerned housing
accommodations known as Apartment D-7 located at 3096 Brighton 6th
Street, Brooklyn, N.Y. The Administrator issued an order
establishing the initial legal regulated rent and finding that
petitioner had been charged excess rent.
The Commissioner has reviewed the record and carefully considered
that portion relevant to the issues raised by this appeal.
The proceeding was originally commenced on July 8, 1985, by the
filing of a complaint of rent overcharge by the tenant who took
occupancy pursuant to a lease which commenced May 1, 1984 and
expired April 30, 1986, at a monthly rental of $365.00. The tenant
stated that the previous tenant was Rent Controlled and paid a much
lower rent. The tenant also stated that the owner had not served
him with the Apartment Registration (form RR-1).
The Administrator issued an order dismissing the tenant's complaint
on the ground that he had not filed a timely challenge to the 1984
Petitioner filed an administrative appeal of the Administrator's
order. In an order and opinion issued May 7, 1990, (Docket N . BB-
210068-RT), the Commissioner remanded the proceeding to the
Administrator to be processed as a Fair Market Rent Appeal.
The Administrator issued a new order on remand. In that order the
Administrator found that the statutory criteria for processing a
Fair Market Rent Appeal had been met. The owner was requested to
submit either June 30, 1974 (base date of ETPA) free market rents or
rental history data for apartments recently rented on the post-ETPA
"Free Market." The owner failed to respond with the necessary data.
The Administrator found that the Maximum Base Rent (MBR) of the
subject apartment was $260.50 on April 30, 1984. Utilizing the
Special Fair Market Guidelines the Administrator determined that the
initial legal regulated rent was $330.45 ($260.50 + 20% per
Guideline 15 + $17.85 fuel cost). Total excess rent of $863.75 was
calculated including excess security.
Docket Number: FA 210345-RT
On appeal the tenant makes two arguments in urging modification of
the Administrator's order. First, he claims that the April 1, 1984
base rent was less than the $260.50 set forth by the Administrator.
Second, the tenant claims that he resided in the apartment for more
than the twenty-four months that the Administrator determined and,
thus the amount of overcharge should have been computed up to the
date he vacated the apartment. The owner did not file a response.
In response to a request dated August 1, 1991, the tenant submitted
copies of his renewal leases and stated that he vacated the
apartment in February 1988.
After careful consideration of the evidence in the record the
Commissioner is of the opinion that the petition should be granted
The tenant's argument that the Administrator should have used a
lower base rent than $260.50 is incorrect. Pursuant to the
Emergency Tenant Protection Act of 1974, as amended by Chapter 403
of the Laws of 1983, a Fair Market Rent is 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."
Since the owner herein failed to furnish the required comparability
date, the Fair Market Rent was determined solely on the basis of the
Special Fair Market Rent Guidelines. Pursuant to Special Guidelines
Order Number 15 which was in effect when the tenant took occupancy,
the 1982 Maximum Base Rent of $260.50 was adjusted by an additional
20%, resulting in a Fair Market Rent of $312.60 plus a fuel cost
adjustment of $17.85 for a total of $330.45. Since the tenant's
initial rent of $365.00 exceeded the Fair Market Rent, the initial
legal regulated rent was adjusted from $365.00 to $330.45 and the
overcharges were computed accordingly.
A review of the record reveals that the Administrator correctly
determined the 1982 Maximum Base Rent and correctly applied the
provisions of Special Guidelines Order Number 15 in determining the
Fair Market Rent. The tenant has not specified why a lower amount
should have been used and has not submitted any evidence to support
his contention. The tenant is advised, however, that the actual
rent the prior rent controlled tenant may have paid is not an
appropriate factor for consideration in determining a Fair Market
Docket Number: FA 210345-RT
Petitioner's second argument, however, does have merit. Petitioner
notified the Administrator that he had vacated the apartment but
there is no evidence in the record that the tenant was asked to
submit updated rental information subsequent to his initial lease
and up until the date he moved. The tenant has provided the
information to the Commissioner and the overcharge calculations are
modified accordingly as set forth in the annexed rent calculation
chart. The revised total overcharge amount is $1,650.17 including
excess security. This order may be docketed and enforced in the
same manner as an order of the Supreme Court.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
ORDERED, that the petition be, and the same hereby is, granted in
part and that the Rent Administrator's order be, and the same hereby
is, modified in accordance with this order and opinion.