HB210010RO
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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.HB210010RO
: DRO DOCKET NO.ZAL210287R
ROBINSON 1601 REALTY CORP. TENANT: J. WIGGINS
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 5, 1992, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
September 25, 1992, by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York, concerning the housing accommodations
known as 1601 Beverly Road, Brooklyn, New York, Apartment No. 2F,
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 originally commenced in September, 1986, by
the filing of a rent overcharge complaint by the tenant in which the
tenant stated in substance that she first moved to the subject
apartment on September 1, 1985 at a rental of $600.00 per month and
that this was an overcharge because the prior rent controlled tenant
was paying only $292.58 per month. The tenant submitted a copy of
her initial lease which listed the prior tenant as paying a rental
of $292.58 per month and a copy of the 1985 annual apartment
registration which listed an April 1, 1985 rent for the subject
apartment of $292.58 per month.
In response to the tenant's complaint, the prior owner's agent
stated in substance that the prior tenant was rent controlled and
that the subject apartment was then renovated resulting in a fair
market rent for the tenant herein of $600.00.
The prior and current owners were afforded an opportunity to
submit comparability data for use in determining the fair market
rent and to submit bills and cancelled checks showing the cost of
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any improvements made in the subject apartment. In response, the
current owner submitted incomplete comparability data and no
evidence as to the cost of the alleged renovation work.
In Order Number ZAL210287R, the Rent Administrator adjusted the
initial legal regulated rent by establishing a fair market rent of
$382.86 effective September 1, 1985, and directed the owner to
refund to the tenant $18,396.44 in excess rent covering the period
from September 1, 1985 to May 31, 1992.
In this petition, the owner alleges in substance that
additional information submitted with its petition should be
considered. Along with its petition, the owner submitted a copy of
an apartment registration form (RR-1) for the subject apartment
dated January 5, 1985 and listing a Dawn Walker as the first rent
stabilized tenant at a rental of $600.00; a copy of a two year lease
for the subject apartment commencing October 1, 1984 at a rental of
$600 and listing Dawn Walker as the tenant; a copy of a Landlord's
Report of Statutory Decontrol for the subject apartment which
indicated that the subject apartment became vacancy decontrolled
from the rent control law on January 1, 1985 and had not been
rerented and copies of various maximum base rent orders for the
subject premises.
In answer to the owner's petition, the tenant stated in
substance that the Rent Administrator's order should be affirmed and
that the lease submitted by the owner for Ms. Walker is fictitious.
The Commissioner is of the opinion that this petition should be
denied.
The evidence submitted by the owner in its petition was
submitted for the first time on appeal and cannot properly be
considered herein since this is not a de novo proceeding and the
owner has given no excuse for its failure to submit such evidence in
the proceeding before the Administrator. Moreover, the evidence
submitted is not consistent since the owner submitted a Report of
Statutory Decontrol which indicated that the subject apartment
became vacancy decontrolled on January 1, 1985 and a lease which
indicated that a first stabilized tenant moved to the subject
apartment on October 1, 1984. In addition, the initial lease
submitted by the tenant herein indicated that the prior tenant was
paying a rent of $292.58 which was the last rent controlled rent.
DHCR rent records for the subject apartment do not indicate
occupancy by a Ms. Walker. Accordingly, the Rent Administrator's
order was warranted.
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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.
If the owner does not take appropriate action to comply with
this order within sixty 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.
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
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