DHCR Decisions
AR Docket No. FD 110143-RO
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 SJR No. 5960
APPEAL OF
ADMINISTRATIVE REVIEW
DOCKET NO.: FD 110143-RO
65TH ASSOCIATES,
DRO DOCKET NO.: AK 110198-R
TENANT: Tarun Kumar Kundu
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 17, 1991, the above-named petitioner-owner filed a
Petition for Administrative Review of an order issued on March 18,
1991 by the District Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning housing accommodations known as
Apartment 4D at 39-25 65th Street, Woodside, New York, wherein the
District 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.
Subsequent thereto, the petitioner filed a petition in the Supreme
Court pursuant to Article 78 of the Civil Practice Law and Rules
requesting that the "deemed denial" of the petitioner's
administrative appeal be annulled. By stipulation between the
parties, the proceeding was withdrawn on condition that the
Division of Housing and Community Renewal render a determination
of the petitioner's administrative appeal within 60 days of
November 26, 1991.
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.
This proceeding was originally commenced on November 10, 1986 by
the filing of an overcharge complaint form by the tenant. The
tenant took occupancy pursuant to a lease commencing September 1,
1986 and expiring August 31, 1987 at a monthly rent of $600.00.
In answer, the owner advised that the subject apartment was
vacancy decontrolled immediately prior to the tenant's occupancy.
The owner submitted an initial apartment registration form dated
September 6, 1986, an undated Notice of Right to File a Fair
Market Rent Appeal (notice form DC-2A) and a certified mail return
receipt signed by the tenant postmarked September 22, 1986.
The owner was sent a fair market rent appeal package affording the
owner an opportunity to submit comparability data. In response,
the owner cited apartments 6E, 5E and 6C in the subject building
and submitted supporting documentation.
AR Docket No. FD 110143-RO
In the Order under appeal herein, the District Rent Administrator
adjusted the initial legal regulated rent by establishing a fair
market rent of $352.08 effective September 1, 1986, the
commencement date of the initial rent stabilized lease, and
directed the owner to refund to the tenant excess rent in the
amount of $9,730.79. The Administrator determined that the
comparability data submitted by the owner was not usable because
the owner failed to submit data for complete lines of apartments
and for the subject line.
In this petition, the owner contends that the District Rent
Administrator's Order is incorrect and should be modified because
the tenant failed to allege that his initial rent exceeded the
fair market rent or to allege facts to support such allegation, as
required by the Rent Stabilization Law and Code. The owner cites
the case of Matter of East 7th Street Associates (Supreme Court,
New York County), in which it was held that the DHCR improperly
converted an overcharge complaint to a fair market appeal where
the tenant never requested a fair market rent appeal and failed to
allege that his rent exceeded the fair market rent. Additionally,
the owner contends that, upon information and belief, the tenant
did not file a timely fair market rent appeal within 90 days of
service of the initial registration. The owner also contends that
two of the apartments cited by the owner, apartments 6E and 6C,
which were decontrolled within 4 years of the subject apartment,
should have been used in the comparability study; that the owner
complied with the instructions in DHCR's notice by submitting
those apartments in the subject building which it believed
qualified as comparable apartments; and that the DHCR should have
referred to registered rents on file with the DHCR to obtain
rental information for all apartments in the line. The owner also
asserts that, upon information and belief, the Maximum Base Rent
(MBR) amount utilized by the Administrator was lower that the
actual MBR amount.
In answer to this petition, the tenant asserts that the owner
failed to submit comparability data for the subject line, that the
apartments cited by the owner are not in the same vertical line as
the subject apartment and are not the same as the subject
apartment, that the tenant's complaint was timely filed and that
the owner's petition should be denied.
In reply to the tenant's answer, the owner asserts that apartment
6E qualifies as a comparable apartment because the initial rent is
no longer subject to challenge and that apartments 6E and 6C are
similar in size to the subject apartment and are therefore
comparable to it.
AR Docket No. FD 110143-RO
The Commissioner is of the opinion that this petition should be
denied.
Regarding the owner's allegation that the tenant did not file a
timely fair market rent appeal, the record indicates that the
tenant timely filed his complaint on November 10, 1986, within 90
days of service of the apartment registration form on September
22, 1986.
While the tenant filed his complaint on a rent overcharge
complaint form, it is apparent from the tenant's complaint that
the tenant wished to challenge the initial legal regulated rent.
The tenant filed his complaint two months after taking occupancy
and stated therein that the prior tenant paid $261.07 per month
rent while he was being charged $600.00 per month. The
Commissioner therefore finds that the Administrator properly
processed the case as a fair market rent appeal.
The Commissioner finds that the tenant's fair market rent appeal
is not materially defective because of the tenant's failure to
allege that the rent exceeded the fair market rent for the subject
apartment. Such allegation is implicit in the tenant's complaint
as indicated above. The Commissioner further finds that since the
directive to tenants in Section 2522.3(b) of the Code to provide
supporting facts is qualified by the phrase "to the best of his or
her information and belief," it cannot be read to create a firm
requirement and the tenant's failure to present such facts does
not warrant dismissal of the tenant's fair market rent appeal.
[Accord: ARL 6666-L].
Regarding the case of Matter of East 7th Street Associates cited
by the owner, the Commissioner notes that a notice of appeal has
been filed by the DHCR in that case.
Regarding the owner's submission of comparability data, the
Commissioner finds that the owner failed to submit data required
for complete lines of apartments, including the subject line. The
Notice of Clarification included with the owner's fair market rent
appeal package, in accordance with longstanding DHCR policy,
advised the owner that "all apartments in the same line (rent
controlled or rent stabilized) must be submitted." The
instruction sheet included with the owner's package states as
follows:
List the legal regulated rents for similar type
apartments, for which the time to file a Fair Market
Rent Appeal has expired and no Fair Market Rent Appeal
is 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 of the
AR Docket No. FD 110143-RO
initial lease of the challenged apartment. First list
such apartments in the subject building that are in the
same line. You may, if you wish, list rentals as
described above for such apartments not in the same line
provided (a) they have the same number of rooms and
similar layout as the challenged apartment and (b) you
list all such apartments within that line not just
selected comparables.
By "line of apartment" is meant all of the apartments in
the same vertical line as the challenged apartment
within the subject building.
Please note that the submission of comparables in other
lines is voluntary on your part; however, they may not
be considered unless you have submitted the comparables,
if any, in the same line as the challenged apartment.
The instruction sheet also directs the owner to list in column 1
of the answer form all apartments that qualify in the same line.
The owner was obligated to submit data for the subject line before
submitting data for other lines of apartments. If no apartments
in the subject line qualified as comparable apartments, and if no
apartments in the E line other than the apartments cited qualified
as comparable apartments, the owner was obligated to so advise the
Administrator. This the owner failed to do so.
Although the owner has requested that the DHCR utilize its own
registration records to complete the comparability study, the
owner is required to submit the comparability data which the owner
wishes to have considered in the comparability study. Court
precedent has held that where no comparability data is available,
the fair market rent may be determined based on the special fair
market rent guidelines alone. The DHCR is not obligated to search
its records for usable comparability data to complete an owner's
incomplete submission, which might not be available in every case.
If an owner wishes to exercise the option of having comparability
data considered in the determination of the fair market rent, the
burden is on the owner to submit all the required data for the
subject line and any additional lines the owner wishes to have
considered. The Commissioner therefore finds that the
Administrator properly did not utilize the owner's comparability
data based on the owner's failure to make a complete submission.
Regarding the owner's assertion that the MBR utilized by the
Administrator was lower than the actual MBR amount, the
Commissioner finds that the MBR utilized by the Administrator
properly conforms to DHCR rent control records and that the owner
has failed to submit any documentation to substantiate its
allegation of error.
AR Docket No. FD 110143-RO
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be and the same hereby is denied and
the District Rent Administrator's order be and the same hereby is
affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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