DOCKET NO.:  FF810009RT

                              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    :  SJR NO.:  6749
     APPEAL OF                                 ADMINISTRATIVE REVIEW  
                                            :  DOCKET NO. FF810009RT
              MARY ANN PALAZZOLO,              DRO DOCKET NO. EEE810089R
                             PETITIONER     :  OWNER:  10 OAKRIDGE PLACE, INC.
     ---------------------------------------X  
                                               

            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 
     improvements.

     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 
     subject apartment.

     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 
     actually charged.

     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 
     rent increase.

     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 
     wrote "yes."]

     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 
     tion thereof.

     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 
     was lawful.

     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.

     ISSUED:



                                                                               
                                                    JOSEPH A. D'AGOSTA
                                                    Deputy Commissioner






    

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