FE 110370-RO, GB 110205-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

      ------------------------------------X 
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NO. FE 110370-RO
                                                        GB 110205-RO

                                          :  DISTRICT RENT OFFICE
                                             DOCKET NO. EJ 110037-RP
           Aldo Ardito/Petrix Realty,                   EI 110022-RP
                                                       (AJ 110438-RO)
                                                        029642

                                             TENANT: Olga Pejerrey            
              
                            PETITIONER    : 
      ------------------------------------X                             

          ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW


      On May 8, 1991 the above-named petitioner-owner filed a Petition for 
      Administrative Review (Docket No. FE 110370-RO) against an order (Docket 
      No. EJ 110037-RP) issued on April 3, 1991 by a Rent Administrator,     
      92-31 Union Hall Street, Jamaica, New York concerning the housing 
      accommodations known as 34-06 82nd Street, Jackson Heights, New York, 
      Apartment No. 2 wherein the Rent Administrator terminated the 
      proceeding.  On February 12, 1991 the owner had filed a Petition for 
      Administrative Review against an order (Docket No. EI-110022-RP) issued 
      on January 8, 1991.  That petition was lost before it could be docketed.  
      On February 19, 1992 the DHCR received another copy, and assigned it 
      Docket No. GB 110205-RO.

      The issue in these appeals is whether the Rent Administrator's orders 
      were warranted.

      The applicable sections of the Law are Section 26-516 of the Rent 
      Stabilization Law and Section 2522.3, 2526.1(a), 2526.1(g) and 2529.10 
      of the Rent Stabilization Code.

      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 appeals.  

      This proceeding was originally commenced by the filing in September, 
      1984 of a Tenant's Objection to Rent/Services Registration, in which the 
      tenant stated that she had commenced occupancy on September 27, 1980 at 
      a rent of $450.00 per month.

      The proceeding was assigned Docket No. 29642.  In an order issued on 
      September 23, 1986 the District Rent Administrator determined the 
      tenant's fair market rent appeal and adjusted the initial legal 
      regulated rent from $425.00 to $234.05 effective December 1, 1976, and 
      found that the owner had collected excess rent of $11,638.40 as of 







          FE 110370-RO, GB 110205-RO

      September 30, 1986.

      On October 22, 1986 the owner filed a Petition for Administrative Review 
      (Docket No. AJ 110438-RO), contending that the rent of other apartments 
      should have been used and the Administrator had failed to include a 
      vacancy allowance in 1981 when Olga Pejerrey signed a lease in her own 
      name rather than letting the lease continue in the name of Elistair 
      Pejerry.

      In an order issued on June 30, 1989 the Commissioner found that the 
      owner had not submitted comparability data for other apartments, granted 
      a vacancy allowance, and found excess rent of $7,816.42 through 
      September 30, 1986.  

      By letter dated July 31, 1981 the owner requested reconsideration of the 
      June 30, 1989 order on the grounds that he should have been given a 10% 
      rather than 5% vacancy allowance during Guideline Period 12 since he 
      provided heat, and that Section 26-513(b) of the Rent Stabilization Law, 
      concerning fair market rent appeals, directly contradicted Section 
      26-516(g), which provided that an owner did not have to keep records for 
      more than four years prior to the most recent registration.  On August 
      10, 1989 the DHCR denied the request on the grounds that the vacancy 
      allowance does not depend on who pays for heat.

      By letter dated July 12, 1989 the tenant requested reconsideration on 
      the grounds that she lived with her husband Elistair Pejerrey and their 
      children in the apartment for two lease terms, and that no "vacancy" had 
      occurred just because the owner had offered a renewal lease with her 
      name on it.  On August 3, 1989 the DHCR granted the request for 
      reconsideration and reopening of the proceeding.

      On September 29, 1989 an order was issued in the reopened proceeding 
      (still Docket No. AJ 110438-RO), denying the owner's Petition for 
      Administrative Review and reinstating the $11,638.40 refund originally 
      ordered by the Administrator's August 30, 1984 order.

      The owner subsequently filed a Petition in the Supreme Court pursuant to 
      Article 78 of the Civil Practice Law and Rules.  On March 28, 1990 
      Justice Hentel remitted the proceeding to the DHCR to give the owner an 
      opportunity to submit post-April 1, 1984 comparability data to the DHCR 
      within 20 days of service of the Court order, and for the DHCR to take 
      into account the cost of two new kitchen appliances.

      On September 13, 1990 the Commissioner issued an order (Docket No. AJ 
      110438-RO, SJR No. 4600) remanding the proceeding for further processing 
      as set forth by Justice Hentel, and to consider the lease documentation 
      submitted with the owner's Article 78 petition.

      On September 28, 1990 the owner requested reconsideration of this order, 
      which seemed to him to limit consideration of comparability data to 
      documentation submitted with its Article 78 petition.



      On October 24, 1990 the DHCR denied the request for reconsideration on 
      the grounds that the owner would be given an opportunity to submit 
      comparability data.



          FE 110370-RO, GB 110205-RO

      On November 15, 1990 the Administrator issued a Notice of Commencement 
      of Proceeding to Reconsider Previous Order [i.e., Docket No. 029642].  
      The proceeding was assigned Docket No. EI-110022-RP.

      In an order issued on January 8, 1991 the Administrator, finding that 
      the owner had failed to respond to an opportunity to submit 
      comparability data, and that the cost of a new stove and refrigerator 
      had been properly calculated in the original order, determined the same 
      lawful rents and same $11,638.40 in excess rent as found by the 
      September 23, 1986 order.

      In its petition against the January 8, 1991 order, the owner contends in 
      substance that in 1986 he first received a fair market rent appeal filed 
      on or about August 30, 1984, stating that use of comparability data 
      would require July 1, 1971 through June 30, 1974 data and the submission 
      of DC-1 or DC-2 forms; that, the previous owner being deceased, the 
      owner had leases only from 1976 as well as an R-42 Report of Statutory 
      Decontrol, which were submitted; that the Omnibus Housing Act was in 
      effect when the Tenant's Objection to Registration was filed, so the 
      owner was not required to maintain records for periods prior to April 1, 
      1980, and there were expanded parameters for comparability data; that 
      the Administrator's order of September 23, 1986 used the pre-April 1, 
      1984 guidelines; that the owner's appeal of that order was not decided 
      until after the promulgation of the current Rent Stabilization Code on 
      May 1, 1987; that the June 30, 1989 order in Docket No. AJ 110438-RO 
      ignored the provision in Section 2529.10 of such Code that it apply to 
      appeals commenced on and after April 1, 1984; that the DHCR should have 
      included an increase based on the cost of a new stove; that Justice 
      Hentel on March 28, 1990 found that the DHCR had failed to apply the 
      current law regarding the submission of comparability data, and remanded 
      the matter to allow the owner to submit such papers; that the owner made 
      numerous submissions of comparability data, including valid proof of 
      service of the 1984 Initial Registrations; that the agency has 
      consistently held that a tenant's personal acknowledgement of receipt of 
      registration is good and sufficient proof; that, nonetheless, the 
      January 8, 1991 order in Docket No. EI-110022-RP stated that the owner 
      failed to respond to another opportunity to submit comparability data or 
      documentation for a Fair Market Rent Appeal; that the DHCR did not 
      process the fair market rent appeal under the four-year statute-of- 
      limitations provided in the Omnibus Housing Act and the May 1, 1987 Rent 
      Stabilization Code; and that the order in fact refers only to the former 
      Code.

      In answer, the tenant asserts in substance that the owner should not be 
      allowed to file another appeal on the basis of a wrong docket number.

      Although the DHCR had processed the proceeding remanded on September 13, 
      1990 by the order in Docket No. AJ 110438-RO as Docket No. EI-110022-RP, 
      the DHCR also inadvertently began processing the remanded proceeding as 
      Docket No. EJ-110037-RP, pursuant to a November 28, 1990 Notice of 
      Commencement of Proceeding to Reconsider Previous Order.  On April 3, 
      1991 an order was issued terminating the proceeding because a 
      determination had already been made on the case under Docket No. EI- 
      110022-RP.  

      The owner appealed the April 3, 1991 order in Docket No. FE 110370-RO.  
      The owner contends that the order in Docket No. EI-110022-RP was 
      erroneously determined, and has attached a copy of his appeal in Docket 







          FE 110370-RO, GB 110205-RO

      No. GB 110205-RO to serve as his argument against the April 3, 1991 
      order.

      The Commissioner is of the opinion that these petitions should be 
      denied.

      Pursuant to Sections 2522.3(e) and (f) of the Rent Stabilization Code 
      effective May 1, 1987, for fair market rent appeals filed after April 1, 
      1984, comparability will be determined based on the following:

           (e)...(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 4 
                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 
                accommodation involved as submitted by the owner

           (f)  Where the rents of the comparable housing 
                accommodations being considered are legal regulated 
                rents, for which the time to file a Fair Market Rent 
                Appeal has expired, and such rents are charged 
                pursuant to a lease ending more than 1 year prior to 
                the commencement date of the initial lease for the 
                subject housing accommodation, such rents shall be 
                updated by guidelines increases for 1 year renewal 
                leases, commencing with the expiration of the 
                initial lease for the comparable housing 
                accommodations to a date within 12 months prior to 
                the renting of the housing accommodations involved.

      The comparability data submitted with the owner's Article 78 petition 
      consisted of leases for Apartment 22, 32, 42 and 52, beginning February 
      1, 1978, January 1, 1980, September 1, 1979 and February 1, 1978 for the 
      respective apartments, as well as signed acknowledgements of receipt of 
      the 1984 registrations by the tenants in occupancy at the time.  While 
      the owner may be correct in contending that the order in Docket No. EI- 
      110022-RP did not consider this data from the Article 78 petition, 
      although directed by the order of September 13, 1990 to do so, that does 
      not matter since the Article 78 data is not acceptable for comparability 
      purposes.  The fair market rent is being determined for a lease 
      commencing December 1, 1976; none of the leases submitted by the owner 
      meet the criteria (first stabilized leases commencing four years prior 
      to or one year after that date) set by Section 2522.3(e) of the Code.
      The Commissioner rejects the owner's contention that the Omnibus Housing 
      Act precluded the Rent Administrator from requesting comparability data 
      beyond the 4 year limitation period.  Section 26-516(g) of the Rent 
      Stabilization Law and Section 2526.1(g) of the Rent Stabilization Code 
      were promulgated for overcharge cases filed after April 1, 1984 and 
      specifically exclude fair market rent appeals, therefore they are not 
      applicable to the present case.  While Section 2529.10 of the Code may 
      require that the 1987 Code be applied to appeals commenced on or after 


          FE 110370-RO, GB 110205-RO

      April 1, 1984, that is indeed being done by applying Section 2526.1(g) 
      of that Code, which states that the rest of Section 2526.1 [involving 
      among other things a four-year limitation] does not apply to fair market 
      rent appeals, which are processed pursuant to Section 2522.3, portions 
      of which were quoted earlier in this order.  Because the owner did not 
      submit, even in his Article 78 petition, data that met the requirements 
      of Section 2522.3, the Administrator was warranted in deriving the fair 
      market rent by use of the Special Guidelines Order alone.

      The owner is incorrect in asserting that the cost of a new stove was not 
      taken into account.  The owner had submitted an October 4, 1985 invoice 
      for $315.33 for a stove.  The Administrator allowed "$7.88 per month for 
      a new stove" in the lease commencing October 1, 1985.  While Justice 
      Hentel also directed consideration of the evidence submitted for the 
      installation of a new refrigerator, the Administrator, in the orders 
      both before and after that court order, had calculated a $6.88 increase 
      effective June 1, 1982 based on a May 2, 1982 invoice for a new 
      refrigerator costing $275.00.

      The owner is cautioned to adjust the rent, in leases after those 
      considered by the Administrator, to amounts no greater than that 
      determined by the Administrator's order plus any lawful increases, and 
      to register any adjusted rents with the Administrator's order being 
      given as the reason for the adjustment.
       
      If the owner does not take appropriate action to comply with this order 
      within sixty days from the date of issuance of this order, the tenant 
      may credit the excess rent against the next month(s) rent until fully 
      offset.

      THEREFORE, in accordance with the provisions of the Rent Stabilization 
      Law and Code, it is

      ORDERED, that these petitions for administrative review be, and the same 
      hereby are, denied and that the orders of the Rent Administrator be, and 
      the same hereby are, affirmed.  The lawful stabilization rent is $410.86 
      per month in the lease from October 1, 1985 to September 30, 1987.  The 
      amount of the rent refund through September 30, 1986 is $11,638.40, 
      including excess security of $176.84.

      ISSUED:

                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner






    

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