DHCR Decisions
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
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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 :
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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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