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
|
