HA610019RO

                                  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 :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO. HA610019RO
                                              :  DRO DOCKET NO.ZEH610097R
               ROGENO REALTY CO.                 TENANT: SAL MARCHESE

                                PETITIONER    : 
          ------------------------------------X                             
             ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


               On January 13, 1993, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on 
          January 8, 1993, by the Rent Administrator, 92-31 Union Hall Street, 
          Jamaica, New York, concerning the housing accommodations known as 
          1610 Mahan Avenue, Bronx, New York, Apt. 3F, 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 
          appeals.

               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 
          warranted.

               The Commissioner has reviewed all of the evidence in the record 
          and has carefully considered that portion of the record relevant to 
          the issue raised by the administrative appeal.  

               This proceeding was commenced by the tenant's filing of a 
          complaint in August, 1990, in which he questioned his initial rent 
          and stated that he first moved to the subject apartment on May 1, 
          1990 pursuant to a two year lease at a rental of $750.00 per month.

               The owner was served with a copy of the tenant's complaint 
          advised that said complaint was being processed as a fair market 
          rent appeal and afforded an opportunity to submit comparability data 
          for use in determining the fair market rent.  The owner was also 
          directed to submit a copy of the Rent Control Landlord's Report, 
          Certification and Notice of Fuel Cost Adjustment and Schedule of 
          Monthly Rent Increases for Controlled Apartments - Fuel Cost 
          Adjustment for the year 1990. 

               In answer to the tenant's complaint, the owner stated that the 
          following improvements had been made in the subject apartment about 
          May of 1990: painting and plastering at a cost of $1500.00; scraping 
          and sanding of the floors at a cost of $340.00; new kitchen, new 
          bathroom, new closets, new  electrical outlets and new doors at a 









          HA610019RO




          cost of $3300.00; new appliances at a cost of $700.38; and building 
          supplies, sheetrock and lumber at a cost of $212.02.  For 
          comparables the owner cited apartments 2F, 4F, 5F, and 6F at the 
          subject premises and stated that apartment 5F was still rent 
          controlled and that the date of the initial rent stabilized lease 
          for apartment 2F was July 1989 and that the date of the initial rent 
          stabilized lease for apartments 4F and 5F was May, 1989.  The owner 
          also cited apartment 4B in the subject premises and three other 
          apartments in the vicinity of the subject premises as being market 
          rent apartments without submitting any proof of why these apartments 
          were not rent stabilized.  The owner did not submit the landlord's 
          report of fuel cost adjustment as directed.

               In Order Number ZEH610097R, the Rent Administrator adjusted the 
          initial legal regulated rent by establishing a fair market rent of 
          $468.52 effective May 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 an 
          allowance of $22.81 for a new refrigerator, new stove, and new door 
          at a total cost of $912.40.  There was no allowance for the 
          plastering, painting and floor scraping as these were considered 
          ordinary repairs and maintenance.  The copies of the job order and 
          cancelled checks for the kitchen and bathroom modernization were 
          found to be both incomplete and inconsistent and therefore no rent 
          increase was allowed for those items.  In addition, no fuel cost 
          adjustment was allowed.

               In this petition, the owner alleges in substance that the Rent 
          Administrator's order incorrectly stated that the subject apartment 
          was subject to the Emergency Tenant Protection Act (hereafter ETPA) 
          whereas ETPA applies only to property located outside New York City; 
          that it did submit comparability data which should have been 
          considered; that it did submit the 1990 fuel cost adjustment; and 
          that it is now submitting copies of cancelled checks that were 
          previously unavailable to substantiate the apartment improvements 
          previously disallowed.

               In answer to the owner's petition, the tenant stated in 
          substance that the Rent Administrator's order was warranted.

               The Commissioner is of the opinion that this petition should be 
          denied.

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

          (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 Rent Appeal has been finally determined, 
          charged pursuant to a lease commencing within a four year period 






          HA610019RO


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

               In the instant case, it is noted that the above requirements on 
          comparability were explained in the instructions sent to the owner.  
          The material submitted by the owner does not meet the aforementioned 
          criteria as required for acceptable comparables pursuant to Section 
          2522.3(e).  The owner did not submit any proof that the tenants of 
          the comparable apartments had been served with a Notice of Initial 
          Legal Regulated Rent or Initial Apartment Registration.  In addition 
          the owner submitted no proof to substantiate its claim that other 
          apartments cited by it were market rent apartments.  Accordingly, 
          the Rent Administrator correctly did not include comparability as a 
          factor in the determination of the fair market rent.

               Regarding the owner's claim to an allowance for the fuel cost 
          adjustment, it is noted that the owner submitted maximum base rent 
          information to substantiate its claim rather than the required 
          Landlord's Report, Certification and Notice of Fuel Cost Adjustment 
          Eligibility and Schedule of Monthly Rent Increases for Controlled 
          Apartments - Fuel Cost Adjustment for the year 1990.  Further, an 
          examination of DHCR Fuel Cost Adjustment records for the subject 
          premises does not disclose any Landlord's Report of Fuel Cost 
          Adjustment Eligibility for the year 1990.  Accordingly, the Rent 
          Administrator correctly did not allow a rent increase due to the 
          fuel allowance.

               Regarding the owner's contention that it is entitled to an 
          additional allowance for improvements, it is noted that the first 
          submission before the Rent Administrator for the $3300.00 for the 
          bathroom and kitchen improvement was entitled "work order" and did 
          not include the name of the alleged contractor "Peter Serpico". The 
          second submission of the work order included the contractor's name.  
          Further the cancelled checks to Peter Serpico submitted during the 
          proceeding before the Rent Administrator added up to only $2000 
          rather than the $3300 claimed.  The copies of additional cancelled 
          checks submitted during the appeal proceeding cannot properly be 
          considered because this is not a de novo proceeding.  Moreover such 
          checks when added to those previously submitted total $4334 rather 
          than the $3300 claimed.  Accordingly, the Rent Administrator 
          correctly did not allow the owner's claim for any additional 
          improvements.  Finally, the provisions of ETPA finding the subject 
          apartment herein subject to the Rent Stabilization Law are 
          applicable even though the subject apartment is located in New York 
          City.  Therefore the Rent Administrator's order was warranted and 
          must be affirmed.














          HA610019RO



               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 issuance 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.

          ISSUED
                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner





                     




















          HA610019RO



















    

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