DOCKET NO.: FF810009RT
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 : SJR NO.: 6749
APPEAL OF ADMINISTRATIVE REVIEW
: DOCKET NO. FF810009RT
MARY ANN PALAZZOLO, DRO DOCKET NO. EEE810089R
PETITIONER : OWNER: 10 OAKRIDGE PLACE, INC.
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
This Order and Opinion is issued pursuant to a stipulation in an Article 78
Proceeding before the Supreme Court, County of Westchester, dated December 8,
1993, Index Number 11065/93, under which the Division agreed to issue an
Order and Opinion in the underlying Petition for Administrative Review within
60 days of December 8, 1993.
On June 3, 1991, the above-named petitioner-tenant filed a Petition for
Administrative Review against an order issued on April 30, 1991, by the Rent
Administrator, 55 Church Street, White Plains, New York concerning housing
accommodations known as Apartment 5B, 10 Oakridge Place, Eastchester, New
York, wherein the Rent Administrator determined that the rent paid under the
tenant's two year vacancy lease did not constitute an overcharge.
The issues in this appeal are whether the Administrator used a correct
comparable apartment when determining the legal vacancy rent and whether the
Administrator correctly granted the owner rent increases for certain
The applicable sections of the Tenant Protection Regulations (TPR) are
Sections 2502.4(a) and 2506.1.
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.
In Order Number EEE810089R, herein under appeal, the Rent Administrator
determined that the highest comparable rent was $689.00 and that the owner
was able to add to that one-fortieth of $4,234.48 ($105.86) for certain
improvements to the apartment. Accordingly, the tenant's initial rent of
$725.00 did not constitute an overcharge.
In this petition, the tenant contends that the Rent Administrator's Order is
incorrect and should be modified because it had been based on erroneous
information. Specifically, the petitioner alleges that she had been told by
a staff member of the DHCR that to be used as a comparable apartment, an
apartment must be the "same exact size." The tenant alleges that the
DOCKET NO.: FF810009RT
apartments used by the owner for comparables were the two highest rentals in
the building at that time and "were completely different in size" from the
In addition, the tenant objects to the rent adjustment allowed by the
Administrator for certain alleged improvements. The tenant notes that in her
response to the Administrator regarding the list of improvements submitted by
the owner she had pointed out that there were items on the list which were
already in the apartment or completed before her occupancy. Therefore, on
appeal she requests an inspection to determined which improvements the owner
is actually entitled to.
In answer to this petition, the owner contends that the order should be
upheld because the apartment used as a comparable was a one bedroom
apartment, as is the subject apartment. Therefore, the use of the apartment
complied with Division procedure. Furthermore, even if only the improvements
actually admitted by the tenant were allowed, one-fortieth of the cost of
those improvements added to the comparable rent would exceed the initial rent
The Commissioner is of the opinion that this petition should be denied.
The two year vacancy lease in question commenced December 1, 1989. The
Westchester County Guidelines Order for leases commencing between October 1,
1989 and September 30, 1990 provided that the rent on a previously vacant
apartment could be raised to the legal regulated rent on October 1, 1989 of
the highest comparable apartment with the same services in the building which
is also subject to ETPA.
DHCR records show that the apartment used as a comparable, 2D, has 3 rooms
and had a rent of $689.00 pursuant to a one year lease commencing June 1,
1989. DHCR records show that the subject apartment also has three rooms.
Despite the tenant's allegation that she was told by a DHCR staff person that
to be considered comparable an apartment must be the same exact size, no such
requirement exists. DHCR policy is to consider two apartments with the same
services to be comparable if they have the same number of rooms. An oral
statement by a staff person can not change that policy.
Since there has not even been an allegation that apartment 2D has different
services than the subject apartment, the Commissioner finds that the
Administrator was correct to allow a comparable rent of $689.00.
The tenant's initial rent of $725.00 was $36.00 over the highest comparable
rent. The owner justified this difference based on an alleged $5,759.46 in
improvements to the apartment, of which the Administrator found $4,234.48 to
be both properly documented and of a nature to justify the one-fortieth rent
increase under the regulations. The Commissioner notes that otherwise
acceptable improvements made while an apartment was vacant can qualify for a
While it is true that the tenant has denied that some improvements were made,
other improvements were acknowledged by her before the Administrator and on
appeal. In particular, the owner alleged $2,923.17 was spent on new kitchen
cabinets, including $1,000.00 for installation. The tenant has acknowledged
that this work was done. [Before the Administrator and on appeal she
submitted a copy of a letter to her from the owner which contained a list of
DOCKET NO.: FF810009RT
alleged improvements, including "Cabinets $2,923.17" after which the tenant
The owner submitted a bill and check for $1,923.17, representing the cost of
materials for this work, as well as a check for $1,000.00 for the installa
One fortieth of $1,973.17, the proven cost of the materials alone is $48.08,
which when added to the highest comparable rent of $689.00 exceeds the
tenant's challenged initial rent.
Accordingly, the Commissioner finds that the tenant's initial rent of $725.00
THEREFORE, in accordance with the Emergency Tenant Protection Act and
Regulations, it is
ORDERED, that this petition be, and the same hereby is, denied and the Rent
Administrator's order be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA