STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.HD410099RO
Aaron H. Spiegel/P & R DRO DOCKET NOs:
Equities, Inc., ZGC410006RP, (51536),
------------------------------------X TENANT: Diane Liebelson
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 23, 1993 the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on March 31, 1993
by the Rent Administrator, 92-31 Union Hall Street, Jamaica, New
York concerning the housing accommodations known as 262 West 107th
Street, New York, New York, Apartment No.2B wherein the Rent
Administrator determined that the owner had collected excess rent
from the tenant.
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 originally commenced in September, 1984 by the
filing of a fair market rent appeal by the tenant, who stated that
she had commenced occupancy on April 1, 1984 at a rent of $775.00
The owner was served with the fair market rent appeal. The owner
submitted leases for apartments in the same line, as well as a paid
invoice for new windows. The owner also submitted a 1984 Fuel Cost
Adjustment form showing a Cumulative Monthly Rent Adjustment of
$17.40 for the subject apartment.
In an order issued on February 12, 1987 the Administrator,
calculating a current comparable rent of $1,292.42 treating the
average 1986 rent of stabilized apartments in the same line as if
they were the rents of apartments decontrolled between July 1, 1971
and June 30, 1974, and updating such average to 1984, found that
the tenant's initial rent was less than the final Fair Market Rent,
and dismissed the tenant's fair market rent appeal.
The tenant filed an appeal (Docket No. BC410149RT), pointing out
the Administrator's error. On February 28, 1992 an order was
issued remanding the proceeding because of the error and because
the owner had not been afforded the opportunity to submit
comparability data in accordance with proper procedures applicable
to fair market rent appeals filed after April 1, 1984.
The new proceeding was assigned Docket No. FG410014RP. On November
10, 1992 and January 25, 1993 the owner was sent fair market rent
answering packages. In response, the owner submitted copies of the
same rental history forms submitted in the earlier proceeding, such
forms indicating that two of the apartments in the "B" line had
base dates in 1982 and 1983. However, the owner also submitted
Schedule 1: Comparability Data, which indicated that those
apartments had actually been decontrolled about ten years earlier.
In an order issued on March 31, 1993 the Administrator, stating
that the comparability submitted by the owner was not useable and
that the owner had failed to substantiate the installation of a new
stove and refrigerator, determined a Fair Market Rent of $431.99,
and found that the owner had collected excess rent of $42,386.12 as
of March 31, 1993.
In this petition, the owner contends in substance that "[w]e feel
that we did offer an alternative way to deal with the fair market
rent"; that the 1984 MBR was $369.54 rather than $307.59; that the
fuel cost adjustment was $20.80 rather than $17.40; and that these
figures used in the DHCR's formula result in a figure of $506.25
rather than $431.99.
In answer, the tenant asserts in substance that the Administrator's
order was correct, and that the owner did not put the date or the
county on his petition as specified in the instructions.
The Commissioner is of the opinion that this petition should be
Pursuant to Sections 2522.3(e) and (f) of the Rent Stabilization
Code effective May 1, 1987, for fair market rent appeals filed
after April 1, 1984, comparability will be determined based on the
rents either of comparable apartments which either are market-rent
apartments [typically not subject to rent regulation] or, if
stabilized, first became stabilized within four years prior to or
one year subsequent to the commencement date of the initial
stabilized lease of the housing accommodation involved. In the
present case the owner submitted as comparables apartments which
become stabilized in the early 1970's. They do not meet the
criteria to be used as comparables.
Since the owner did not submit acceptable comparables, the
Administrator obtained the fair market rent by use of Special Fair
Market Rent Guidelines Order 15, which established the fair market
for dwelling units subject to the Rent And Rehabilitation
Law on September 30, 1983, 20% above the sum of the 1982-
83 maximum base rent, as it existed or would have
existed, plus the current allowable fuel cost adjustments
as established on Rent Control forms, pursuant to Section
33.10 of the Rent Regulations, beginning in 1980.
It was therefore proper for the Administrator to use the 1982-83
MBR of $307.59, rather than the 1984 MBR of $369.54. Regarding the
fuel cost adjustment: On February 6, 1984 the owner had submitted
a 1984 Maximum Base Rent Master Building Rent Schedule, listing a
fuel cost adjustment of $20.80 for the subject apartment. However,
an examination of the actual fuel cost schedule ("Part VI- Schedule
of monthly Rent Increases or Decreases for Controlled Apartments-
Fuel Cost Adjustment- 1983") reveals that $20.80 was actually the
adjustment for 1983. On February 27, 1984 the owner submitted the
1984 fuel cost schedule. It showed a decrease of $3.40, resulting
in a 1984 fuel cost adjustment of $17.40. That was the current
fuel cost adjustment when the complainant commenced occupancy, and
the Administrator was correct in using it.
The owner is directed to reflect the findings and determinations
made in the Administrator's order on all future registration
statements, including those for the current year if not already
filed, citing the Administrator's 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
the Administrator's order. The owner is further directed to adjust
subsequent rents to an amount no greater than that determined by
the Administrator's 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 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. The lawful stabilization
rent is $568.78 per month in the lease from April 1, 1992 to March
31, 1994. The amount of the rent refund through March 31, 1993 is
$42,386.12, including excess security of $451.64.
JOSEPH A. D'AGOSTA