HC210252RO

                                  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  S.J.R. NO. 7365
          IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO. HC210252RO
                                              :  DRO DOCKET NO.ZCG210058R
               MOSES FRIED                       TENANT: PARRISH 

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


               On March 16, 1993, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on March 
          12, 1993, by the Rent Administrator, 92-31 Union Hall Street, 
          Jamaica, New York, concerning the housing accommodations known as   
          789 St. Marks Avenue, New York, New York, Apartment 2C,  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 in July 1988 by the tenants 
          filing a complaint of rent overcharge in which they stated that they 
          had first moved to the subject apartment in June 1988 at a rental of 
          $750.00 per month and that the prior tenants had lived there for a 
          period of twenty years.  

               The owner was served with a copy of the complaint and advised 
          that the complaint was being treated as a fair market rent appeal.  
          The owner was also afforded an opportunity to submit comparability 
          data but did not do so.

                In Order Number ZCG210058R, the Rent Administrator adjusted  
          the initial legal regulated rent by establishing a fair market rent 
          of $548.64 effective June 1, 1988.  The fair market rent was based 
          solely on the basis of the special fair market rent guideline since 
          the owner did not submit any comparability data.  In addition the 
          Rent Administrator found that the tenant had paid excess rent 
          totalling $12,294.96 and directed the owner to refund such excess 
          rent to the tenants.









          HC210252RO



               In this petition and in a supplement to said petition, the 
          owner alleges in substance that the fair market rent for the subject 
          apartment was based on the rents of comparable apartments in the 
          same area specifically apartment 3F at 770 St. Marks Avenue which 
          rented for $650.00 on April 1, 1988 and that the subject apartment 
          is twice the size of apartment 3F.  The owner submitted copies of 
          the registration statements with DHCR for apartment 3F in support of 
          his contentions.

               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 
          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 the owner was afforded an opportunity in 
          the proceeding before the Rent Administrator to submit comparability 
          data pursuant to the above criteria but did not do so.  Since this 
          is not a de novo proceeding, comparability data submitted for the 
          first time on appeal cannot properly be considered.  Moreover the 
          apartment cited by the owner on appeal is not usable since it does 
          not contain the same number of rooms as the subject apartment and 
          the owner has not submitted proof that it was a legal regulated rent 
          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.  In addition the owner failed to 
          submit all apartments in the subject line as directed by the DHCR.  
          Accordingly, the Rent Administrator's order was warranted.

               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.







          HC210252RO

               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





                     



































    

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