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.FF110432RO
Rosa Dilluvio : DRO DOCKET NO.CG110238R
TENANT: Maher Hussein
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
This proceeding was originally commenced by the filing of a
challenge to the initial rent by the tenant of Apartment 2B at 31-
56 34th Street, Astoria, New York. By order issued on March 26,
1991 the 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, and determined that excess rent totalling
$2,742.60 (through April 30, 1989, had been collected.
The owner thereafter filed a Petition for Administrative Review
(PAR) challenging the Administrator's order. By order issued on
May 21, 1991 the Commissioner rejected the owner's petition because
the owner failed to set forth in the petition the name and address
of the tenant. On June 12, 1991 the owner refiled her PAR, but
repeated the omission. On August 8, 1991 an order was issued
dismissing that PAR. By order dated September 20, 1991 the
Commissioner found that the proceeding should be reopened due to an
irregularity in a vital matter, that the order of dismissal should
be rescinded, and the matter reconsidered on the basis of the
original Petition for Administrative Review and relevant responses
received in reply thereto.
In this petition, the owner alleges that the rent at the time the
tenant rented the apartment was justified. The owner cites rents
for other apartments similar to the tenant's apartment in the same
building and in a nearby building.
The tenant responded by stating, among other things, that the owner
failed to cite other comparable apartments such as apartment 3B
which the tenant states rents for less than the subject apartment.
In response, the owner states that the Code allows an owner to
take a free market rent and defines such rent as "similar to the
rent of a comparable apartment." The owner also disputes the
rent cited by the tenant for apartment 3B.
The Commissioner is of the opinion that the petition for
administrative review should be denied, and that the order of the
Administrator should be affirmed.
Section 2522.3 of the Rent Stabilization Code States, in pertinent
part, that in determining fair market rent appeals, consideration
shall be given the applicable guidelines promulgated for such
purposes by the Rent Guidelines Board, and to rents generally
prevailing for substantially similar housing accommodations. The
rents for these comparable housing accommodations may be considered
where such rents are legal regulated rents for which the time to
file a Fair Market Rent Appeal has expired and none is then
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 initial lease of the challenged apartment.
The Commissioner notes that the submission of comparables in other
lines is voluntary; however, they may not be considered unless the
comparability data for apartments in the same line as the subject
apartment are submitted as well.
The record in this case indicates that the owner was afforded an
opportunity to submit comparability data during the proceeding
before the Administrator. In response, the owner submitted the
rent for Apartment 3A as a comparable, but failed to submit data
for the complete "A" line or for the subject "B" line of
apartments, as required. The additional comparable rentals cited
by the owner in her petition for administrative review may not be
considered for the first time on appeal. It is noted that such
data is also inadequate in that it does not include data for
complete lines of apartments including the subject line as well as
documentation (DC-2 notice or initial apartment registration) that
such rents are not subject to challenge. Accordingly, the
Administrator's use of the special guideline alone to establish the
fair market rent was correct.
The owner is directed to roll back the rent to the lawful
stabilized rent consistent with this decision and to refund or
fully credit against future rents over a period not exceeding six
months from the date of receipt of this order, the excess rent
collected by the owner.
In the event the owner does not take appropriate action to comply
within sixty(60) days from the date of this order, the tenant may
credit the excess rent collected by the owner against the next
month(s) rent until fully offset.
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. The total
amount of excess rent owed to the tenant is $2,742.60, and the
monthly lawful stabilization rent is $336.45 effective February 1,
JOSPEH A. D'AGOSTA