GH 410149 RO
                                  STATE OF NEW YORK
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                              JAMAICA, NEW YORK   11433

          APPEAL OF                               DOCKET NO.: GH 410149 RO

                    95 RIVER COMPANY,
                                                  DRO DOCKET NO.: ZFB 410234 R
                                                  TENANT:  ERICK K. FUCHS


          On August 19, 1992, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on July 
          24, 1992, by the Rent Administrator, Gertz Plaza, Queens, New York, 
          concerning the housing accommodations known as 230 Riverside Drive, 
          New York, New York, Apartment No. 10L, wherein 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 

          The Administrative Appeal is being determined pursuant to the 
          provisions of Section 2522.3 of the Rent Stabilization Code.

          The issue herein is whether the Rent Administrator's order was 

          This proceeding was originally commenced on February 20, 1991, by 
          the tenant's filing of a rent overcharge complaint in which the 
          tenant stated in substance that he first moved to the subject- 
          apartment on November 1, 1990 pursuant to a two year lease at a 
          rent of $1,321.19 per month; that the subject apartment was 
          formerly rent controlled and that he questioned his initial rent 
          for the subject apartment.

          The owner was served with a copy of the tenant's complaint and 
          directed to submit proof as to when it served the apartment 
          registration form (hereafter RR-1 Notice)  In response, the owner 
          submitted proof that it had served the tenant with the RR-1 Notice 
          on January 3, 1991.

          GH 410149 RO

          The owner was also advised that the tenant's complaint was being 
          considered as a fair market rent appeal and afforded an opportunity 
          to submit comparability data for use in determining the fair market 
          rent.  In answer the owner cited apartments 19L and PHL for use as 

          In Order Number ZFB 410234 R, the Rent Administrator adjusted the 
          initial legal regulated rent by establishing a fair market rent of 
          $620.10 effective November 1, 1990, the commencement date of the 
          initial rent stabilized lease.  The fair market rent was determined 
          solely on the basis of the special fair market rent guideline plus 
          a rent increase due to improvements made in the subject apartment.  
          The comparable apartments cited by the owner were not used since 
          they were decontrolled more than four years prior to the initial 
          stabilized renting of the subject apartment.  In addition the Rent 
          Administrator determined that the tenant herein had paid excess 
          rent of $15,423.98 including excess security and directed the owner 
          to refund the excess rent to the tenant.

          In this petition, the owner alleges in substance that the Division 
          of Housing and Community Renewal (DHCR) had no authority to convert 
          the tenant's rent overcharge complaint into a fair market rent 
          appeal; that the tenant failed to allege that his rent was in 
          excess of the fair market rent; that the tenant's time to file a 
          fair market rent appeal has now expired so that the tenant's 
          complaint must be dismissed; that in any event the Rent 
          Administrator offered no valid reason for rejecting apartments 19L 
          and PHL as comparables; that the owner should have been given an 
          opportunity to submit other comparables once 19L and PHL were 
          rejected and now lists apartments 5N, 10E, 10K and 19K as 
          comparables; and that DHCR itself should be mandated to search its 
          records for comparable apartments.

          The Commissioner is of the opinion that this petition should be 

          Pursuant to Section 2522.3(e) of the Rent Stabilization Code 
          effective May 1, 1987, applicable to fair market rent appeals filed 
          after April 1, 1984, comparability will be determined based on the 

               (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 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 date of the initial lease for the 
                    housing accommodation involved; and 

               (2)  At the owner's option, market rents in effect 

          GH 410149 RO

               for other comparable housing accommodations on 
                    the date of the initial lease for the housing 
                    accommodations involved.

               Pursuant to Sections 2522.3(c)(2), 2526.1(a)(2) (ii), and 
               2428.2(d) of the Rent Stabilization Code, a tenant must 
               file a challenge to the initial apartment registration 
               (overcharge complaint or fair market rent appeal) within 
               90 days of service of the RR-1 Notice on the tenant by 
               certified mail.

          In the instant case the initial complaint filed by the tenant 
          although filed on a "rent overcharge complaint" form was clearly a 
          complaint in which the tenant was questioning the fair market rent.  
          Further the owner was served with a copy of the complaint and 
          informed it was being processed as a fair market rent appeal so 
          that the owner was not prejudiced in any way by the use of the 
          overcharge form.  Accordingly, it was proper to treat the tenant's 
          complaint as a fair market rent appeal.  In addition the tenant's 
          complaint was filed within 90 days of service of the RR-1 Notice so 
          that it must be considered as timely.

          The owner's contention that the Rent Administrator failed to give 
          a valid reason for rejection apartments 19L and PHL as comparables 
          is not correct.  Said apartments were rejected pursuant to Section 
          2522.3(e) cited above in that the initial stabilized leases for 
          such apartments commenced more than four years prior to the 
          commencement date of the initial stabilized lease for the subject 
          apartment.  It is also noted that the criteria for acceptable 
          comparable apartments pursuant to Section 2522.3(e) was sent to the 
          owner at the time the owner was directed to submit comparables and 
          that all comparables were required to be submitted at that time.  
          Comparables submitted for the first time on appeal may not be 
          considered since this is not a de novo proceeding.  Finally, it is 
          the owner's responsibility in accordance with Section 2522.3 to 
          submit comparability data if it chooses and the DHCR is under no 
          obligation to choose comparables for an owner.  Accordingly, the 
          Rent Administrator's order was warranted.

          The owner is directed to roll back the rent to the lawful 
          stabilized rents 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.

          Because this determination concerns lawful rents only through July 

          GH 410149 RO

          31, 1992 the owner is cautioned to adjust subsequent rents to an 
          amount no greater than that determined by the Rent Administrator's 
          order plus any lawful increases and to register any adjusted rents 
          with this order and opinion being given as the explanation for the 

          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.


                                                  JOSEPH A. D'AGOSTA
                                                  Acting Deputy Commissioner

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