FA110225RO
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. FA110225RO
: DISTRICT RENT OFFICE
Nick Tsoumpariotis, DOCKET NO. 59128
TENANT: J. Visser
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 23, 1991, the above-referenced owner filed a Petition for
Administrative Review against an order issued on December 19, 1990, by
a Rent Administrator, concerning the housing accommodations known as
45-29 42nd Street, Sunnyside, New York, Apartment No. 2E, wherein the
Administrator determined the "fair market rent" of those accommodations.
The underlying proceeding was commenced by the 1985 filing of a Tenant's
Objection to Rent/Services Registration, in which the tenant stated that
he was appealing the rent charged. In January 1988, the owner filed his
Answer to Fair Market Rent Challenge. In April of 1990 the
Administrator noted that the file contained an apparent photocopy of a
notarized statement, dated January 10, 1986, to the effect that the
tenant, satisfied that there was no overcharge, was thereby withdrawing
his complaint.
When the Administrator asked the tenant if he indeed wished to withdraw
same, the tenant answered in the negative, stating inter alia that he
had not made or signed that statement, his signature thereon being a
forgery. (That response does not appear to have been sent to the
owner.)
In August of 1990 the petitioner wrote to the Administrator that in
order to "justify" the complainant's rent he would have to speak with
"the previous landlord," (then "on vacation"). Later that month the
Administrator sent the owner a "Summary Notice" stating:
"Had the subject apartment remained under rent control the 1985, Maximum
Rent for the subject apartment would have been $317.01.
"Therefore, the fair market rent for the subject apartment will be
determined on the basis of the 1985, Maximum Rent increased by the
appropriate Special Fair Market Rent Guidelines Order.
"If you have any comments[,] [p]lease reply within 21 days.
FA110225RO
"NOTE: This is not a final determination," (Emphasis in original.)
In November, 1990, the Administrator sent the owner an Amended Summary
Notice stating in pertinent part: "Had the subject apartment remained
under rent control the 1984 Maximum Rent ... would have been $247.23.
*** The fair market rent ... will be determined on the basis of the 1984
Maximum Rent ... *** If you have any comments, please reply... ."
The above-referenced and aforementioned Administrator's order ensued,
the Rent Administrator therein adjusting the initial legal regulated
rent, by establishing a fair market rent of $294.80 effective May 1,
1985, the commencement date of the initial rent-stabilized lease. In
addition, the Rent Administrator determined that the tenant had paid
excess rent of $7,406.40 through April 30, 1987, and directed the owner
to refund such excess rent to the tenant.
In this petition, the owner first cites the aforementioned first Summary
Notice as authority for the contention that the "base rent" used by the
Administrator was incorrect.
Along with his petition, the owner has submitted copies of apparent
documentation of alleged expenditures by him that would have permitted
a rental increase for the subject apartment, arguing: that when the
previous owner submitted the aforementioned purported withdrawal of his
complaint, he believed that no "further document[ation] to support the
legality of the first rent charged was ... necessary"; and that because
the Rent Administrator did not take that withdrawal "under
consideration," the petitioner, having now "obtain[ed] all exist[ing]
documents from previous owner," should be allowed to present
them at this time.
The Commissioner is of the opinion that this petition should be denied.
Turning to the first citation of error, it is true that the first
Summary Notice sent to the owner differs from the Administrator's order
in terms of the Maximum Base Rent under the rent-control system ("MBR")
used to determine the initial rent under rent stabilization. The Notice
itself states, however, that it is not a final order; moreover it was
superseded by the aforementioned amended version, and petitioner states
no reason to prefer the figure used in the first notice to that in the
Administrator's order. Finally, the Commissioner's recomputation of the
MBRs herein reveals that the Administrator did not err in this regard.
The remainder of the PAR consists in essence of a plea for the
Commissioner to accept certain documentation that was not presented to
the Administrator. Seeking an exception to the rule that the
Commissioner will not accept such a tardy submission, the owner asserts
that he was misled into delay by the aforementioned purported withdrawal
of the tenant's complaint, which the previous owner had placed in the
record. Petitioner's explanation, however, is not meritorious. The
history set forth above demonstrates that after the purported date of
that withdrawal, communications from the Administrator would have made
it very difficult for the owner to believe the proceeding was not going
forward, and communications from the owner made it obvious that in fact
he knew it was. Petitioner having presented no other reason for the
Commissioner to accept evidence that could have been submitted to the
FA110225RO
Administrator, his purported documentation, submitted to justify a
rental increase, will not be considered now on appeal. Petitioner has
in sum presented no reason to upset the Administrator's order.
The owner is directed to roll back the rent to the lawful stabilized
rent consistent with this decision and to refund the excess rent
collected from the complainant.
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. A copy of this order is being sent to the
current occupant of the accommodations.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
PETITION FOR ADMINISTRATIVE REVIEW OVERCHARGE UNIT
COVERING MEMORANDUM
FA110225RO
ARU DOCKET NO.: FA110225RO
DRO DOCKET NO./ORDER NO.: 59128
TENANT(S): J. Visser
OWNER: N. Tsoumpariotis
CODE SECTION:
PREMISES: 45-29 42nd Street, Apt. 2E, Sunnyside
ORDER AND OPINION DENYING PETITION
FMRA. "Summary Notice" to owner used higher MBR figure than
did Administrator's order. Owner cites that as error, and
also says he should be allowed -- due to withdrawal of
complaint sent to Administrator -- to submit late evidence of
vacancy improvements. Decision: Administrator's order (not
Summary Notice) had MBR right. No valid excuse for not
submitting documentation to Administrator. LR
APPROVED:
Processor:
Processing Attorney:
Supervising Attorney:
Bureau Chief:
Deputy Commissioner:
Mailed Copies of Order and Determination to:
Tenants(s)
Owner
Tenant's Atty
Owner's Atty
Date: : By
signature
Deputy Commissioner
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