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

          APPEAL OF                              DOCKET NO. HB410031RO
                                              :  DRO DOCKET NO.ZEJ410411R
               JANOFF & OLSHAN, INC.             TENANT: BONNIE CALDER

                                PETITIONER    : 

               On February 12, 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 
          440 West 34th Street, New York, New York, Apt. 6H 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 Sections 2522.3 and 2522.5 of the Rent Stabilization 

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

               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 questioning the fair market rent in October, 1990.  The 
          tenant stated that she was the second rent stabilized tenant and had 
          moved to the subject apartment in March, 1990, at a rental of 
          $925.00 per month.

               The owner was served with a copy of the tenant's complaint and 
          afforded an opportunity to submit comparability data for use in 
          determining the fair market rent.  In response, the owner stated 
          that the fair market rent appeal should be dismissed because the 
          tenant herein was not the first rent stabilized tenant and the 
          complaint was filed almost two years after the date of decontrol.  
          The owner stated that the first rent stabilized tenant moved to the 
          subject apartment on July 1, 1989.  The owner also submitted 
          comparability data and an invoice dated June 14, 1989 from the 
          general contractor "La Continental" showing the following 
          improvements were made in the subject apartment at a total cost of 
          $3,210.70: Installation of new Hotpoint Refrigerator; Installation 


          of new Whirlpool Range; Removal of old kitchen sink and installation 
          of new double sink; removal of old kitchen floor and installation of 
          new tile floor; and "retiled complete bathroom".

               In a response dated August 13, 1992, the tenant stated in 
          substance that when she first moved to the subject apartment the 
          refrigerator in the apartment was a General Electric manual defrost 
          model (subsequently the tenant asked for a new refrigerator and 
          received a new Hotpoint model for which she is paying a rent 
          increase); that she has a Hardwick Century Service Range and not a 
          Whirlpool model; that she has a single sink which frequently leaks 
          and not a double sink; that the kitchen tiles were replaced with 
          self-stick vinyl tiles; that the bathroom tiles are the original 
          tiles from 65 years ago; and that all the work done was performed by 
          Louis Nazar who was the superintendent of the building who formed a 
          company called "La Continental" while working as a superintendent.

               The owner was served with a copy of the tenant's August 13, 
          1992 response and in a reply dated August 25, 1992, stated inter 
          alia "There is no basis for the tenant's claim that the work was 
          never done.  La Continental is a licensed contracting firm.  
          Enclosed is their bill and cancelled check.  We checked the work.  
          The tenant's comments are all hearsay and without any basis in 

               In order to ascertain whether the improvements claimed by the 
          owner had in fact been installed, DHCR caused a physical inspection 
          to be held at the subject apartment on September 28, 1992.  The 
          inspection report disclosed that the range was a Hardwick Century 
          Service Range; that the sink was a single stainless steel; and that 
          the old tiles (original) in the bathroom go up to the window ledge 
          level but that there have been new tiles installed above that level 
          above the bathtub.

               In Order Number ZEJ410411R, the Rent Administrator adjusted the 
          initial legal regulated rent by establishing a fair market rent of 
          $747.19 effective July 1, 1989, 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 since it was 
          found that the owner had not submitted usable comparability data.  
          No allowance was given for the vacancy improvements based on the 
          inspection report.  However, an improvement increase of $10.00 was 
          allowed effective September 1, 1992 due to the installation of a new 
          Hotpoint refrigerator during the tenant's occupancy and with the 
          tenant's consent to said installation.  In addition, the Rent 
          Administrator determined that the tenant had paid excess rent of 
          $6,161.96 through January 31, 1993, and directed the 
          owner to refund such excess rent to the tenant.

               In this petition, the owner alleges in substance that the 
          tenant's complaint should have been dismissed as untimely since the 


          prior tenant had been served with a copy of the owner's report of 
          vacancy decontrol as well as the initial apartment registration 
          (hereafter RR-1 form) in July of 1989 and the tenant's complaint 
          herein was filed after the 90 day limit; that the owner provided 
          proof of service of the initial registration;  that the Rent 
          Administrator should have granted rent increases for the vacancy 
          improvements; that the Rent Administrator's order is deficient in 
          failing to cite the findings of the DHCR inspector; that a hearing 
          should have been held so that the owner could have attempted to 
          produce witnesses as to the installation of the improvements; that 
          the Rent Administrator incorrectly denied the owner a vacancy 
          increase as well as two increases for two one year leases during the 
          first sixteen months of the complainant's tenancy in that Section 
          2522.5 (a)(1) of the Rent Stabilization Code does not refer to the 
          situation where a new tenant occupies an apartment within the time 
          period of the first stabilized tenant's lease but only covers the 
          initial stabilized tenant; that even if the owner was not entitled 
          to any increase for the subject apartment until after the expiration 
          date of the first stabilized tenant's lease passed, the Rent 
          Administrator failed to include all permitted increases in the rent 
          calculations - that is a 12% vacancy increase plus a 5 1/2% 
          guideline increase for the complainant's initial lease plus a 7% 
          increase for the complainant's renewal lease commencing March 1, 
          1991; that the owner submitted valid comparables which should have 
          been considered; that contrary to the Rent Administrator's statement 
          in her order Apartment 16B did become decontrolled as a result of a 
          vacancy occurring as of October 30, 1990 - within the required 
          period for consideration as a comparable; and that the owner did 
          submit comparability data for the whole line of apartments; and that 
          the owner should not be penalized for failing to meet some technical 

               The Commissioner is of the opinion that this petition should be 

               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 
          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.

               Section 2522.5(a)(1) of the Rent Stabilization Code provides in 

          pertinent part that for a housing accommodation subject to the City 


          Rent Law which becomes vacant after March 31, 1984, the owner may 
          not increase the rent charged in the initial lease or other rental 
          agreement pursuant to annual guidelines for a period of one year or 
          until the expiration date of the initial lease or rental agreement, 
          whichever is later.

               With regard to the owner's contention that the tenant's 
          complaint was untimely, it is noted that the owner did not submit 
          sufficient evidence to establish that the RR-1 form was served on 
          the prior tenant.  It is noted that Post Office Form 3811 submitted 
          by the owner to prove timely service on the prior tenant by 
          certified mail is not postmarked by the Post Office and there is no 
          date of delivery on such form.  Accordingly, it must be considered 
          that the tenant's complaint herein questioning the fair market rent 
          was timely filed.

               The owner's contention that rent increases should have been 
          granted for the vacancy improvements is without merit.  The report 
          of physical inspection as described above does not corroborate the 
          owner's invoice describing the alleged improvements in several major 
          respects - different make of range found; single sink instead of 
          double sink and complete retiling of bathroom not done.  Further the 
          tenant's contention that a new Hotpoint refrigerator was not in the 
          subject apartment as the owner claimed when the tenant first took 
          occupancy has merit.  If a new refrigerator had been installed at 
          that time, there would have been no need for the tenant to request 
          and pay for a new Hotpoint refrigerator two years later.  Due to 
          such major discrepancies, the Rent Administrator's determination 
          denying the entire rent increase for these vacancy improvements was 
          warranted.  The Rent Administrator's order was not deficient in 
          failing to cite the specific findings of the DHCR inspector and 
          there was no need to hold a hearing regarding this issue.

               Further pursuant to Section 2522.5(a)(1) of the Rent 
          Stabilization Code, the Rent Administrator correctly determined that 
          the owner was not entitled to a rent increase for the tenant herein 
          until the expiration date of the initial lease for the first rent 
          stabilized tenant.  In addition, contrary to the owner's contention, 
          the Administrator correctly considered the period immediately 
          following the expiration date of said initial lease as a vacancy 
          lease for the tenant herein and allowed the owner the appropriate 
          vacancy increase to which it was entitled.  The owner was not 
          entitled to a guideline and vacancy increase for the period covered 
          by the initial lease of the first rent stabilized tenant.

               Finally the owner did not submit the required comparability 
          data to have comparable apartments considered in the determination 
          of the fair market rent.  The Administrator correctly found that 
          apartment 16B which was initially rented to the first stabilized 
          tenant on November 1, 1990 did not fit the criteria of Section 
          2522.3(e) in that such renting was not within four years prior or 
          one year subsequent to the initial stabilized lease of the subject 
          apartment which occurred on July 1, 1989.  The owner does not 
          specifically list allegations with respect to the denial of the use 
          of other comparables submitted.  However the owner does make general 
          allegations that other comparables should have been used and that it 
          did submit comparability data for complete lines of apartments and 
          should not be penalized for failing to meet technical requirements.  


          The Commissioner notes that the Rent Administrator also listed 
          apartment 6H as an apartment where the owner failed to submit 
          complete rental data for the entire subject line and failed to 
          submit the RR-1 Form or DC-2 Notice with proof of service.  The 
          Commissioner further notes that apartment 6H is the subject 
          apartment and that the Rent Administrator meant to refer to 
          apartment 16H.  The Rent Administrator's order is hereby amended to 
          change the reference on the first line of page two to show Apartment 
          16H rather than 6H.  During the course of the proceeding before the 
          Rent Administrator in a notice from DHCR dated August 21, 1992, the 
          owner was specifically informed that apartment 16H was being 
          considered as a comparable but that the owner needed to submit data 
          for the entire "H" line of apartments and told exactly what data 
          needed to be submitted.  The owner failed to comply with the August 
          21, 1992 notice.  In addition the owner did not submit postmarked 
          proof of service of the RR-1 Form or DC-2 Form on the tenant of 
          Apartment 16H.  Accordingly, Apartment 16H was correctly not used as 
          a comparable apartment.  Finally, other apartments cited by the 
          owner did not contain the same number of rooms as the subject 
          apartment or did not become vacant within the required time periods 
          or the owner did not submit complete comparability data for such 
          apartments.  Accordingly, the Rent Administrator's order was 

               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 

               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 as modified to 
          show Apartment 16H rather than Apartment 6H on page two of the order 
          on the first line.

                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner



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