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

          APPEAL OF                              DOCKET NO. IC510016RO
                                              :  DRO DOCKET NO.DH510027TC
               95 RIVER COMPANY                  TENANT: MICHAEL W. STERN

                                PETITIONER    : 

               On March 4, 1994, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on 
          November 19, 1993, by the Rent Administrator, 92-31 Union Hall 
          Street, Jamaica, New York, concerning the housing accommodations 
          known as 230 Riverside Drive, New York, New York, Apt 5N, 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.  Because the Rent Administrator's order listed an incorrect 
          owner's name "H. S. Milton - 95 River Company" rather than "95 River 
          Company" - the registered owner; and the owner claimed it never 
          received a copy of the Rent Administrator's order from the DHCR, the 
          Commissioner deems it appropriate to treat the owner's Petition for 
          Administrative Review as timely filed.  It is further noted that the 
          manager for the subject premises is Milton H. Sherman rather than H. 
          S. Milton.

               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 

               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 an 
          objection to the registration on August 7, 1989 in which the tenant 
          questioned the fair market rent of the subject apartment.

               On April 8, 1993, the owner was served with a copy of the 
          tenant's objection and afforded an opportunity to submit 
          comparability data and to list improvements made in the subject 
          apartment if any.  In a response received by the DHCR on May 10, 
          1993, the owner cited apartment 12N in the subject premises as a 
          comparable.  The owner stated that apartment 12N's rent controlled 
          tenant had vacated on May 31, 1989 and that the date of the initial 
          stabilized lease for apartment 12N was September, 1990 at a rental 


          of $900.00 per month.  The owner had been directed by the DHCR that 
          the rents of all comparable rent stabilized apartments submitted by 
          the owner must be accompanied by proof that a DC-2 Notice was served 
          on the first rent stabilized tenant which was not challenged within 
          ninety (90) days of receipt thereof or, if challenged, such 
          challenge has been resolved with an Order and Determination from the 
          DHCR or that the tenant in occupancy on April 1, 1984 received a 
          copy of the apartment registration and failed to challenge it within 
          ninety (90) days of receipt thereof or, if challenged, such 
          challenge has been resolved by an Order and Determination from the 
          DHCR.  The owner did not submit any of the above information.  In 
          addition, the owner stated that new kitchen equipment including a 
          stove and refrigerator had been installed in the subject apartment 
          and submitted copies of invoices to substantiate such contention.

               On May 25, 1993, the owner was sent a request for additional 
          information by the DHCR.  Such request directed the owner to submit 
          the initial lease, DC-2 or RR-1 with certified proof of service for 
          apartment 12N and to submit proof of payment for the refrigerator 
          and stove.  In a response received on June 4, 1993, the owner 
          submitted a copy of the lease for apartment 12N effective September 
          1, 1991 at a rental of $985.50 and copies of the annual apartment 
          registrations for 1990 and 1991 for apartment 12N together with 
          proof of service of such registrations.  The owner also submitted 
          copies of invoices in support of its claimed improvements.

               In response the tenant stated in substance that his original 
          refrigerator broke down after a few weeks and he was given another 
          refrigerator that was not new.

               In Order Number DH510027TC, the Rent Administrator adjusted the 
          initial legal regulated rent by establishing a fair market rent of 
          $595.93 effective April 1, 1989.  The fair market rent was 
          determined on the basis of the special fair market rent guideline 
          plus an additional increase of $23.14 for new kitchen equipment 
          excluding the refrigerator and stove.  In addition, the Rent 
          Administrator found that the tenant had paid excess rent totalling 
          $32,015.71 and directed the owner to refund such excess rent to the 
          tenant.  The Rent Administrator also noted in her order that the 
          tenant had vacated the subject apartment effective August 31, 1993.

               In this petition, the owner alleges in substance that it did 
          submit paid invoices and cancelled checks in support of the cost of 
          the new stove and refrigerator and therefore should have been 
          allowed a rent increase for these items; and that the Rent 
          Administrator never requested comparability data from the owner.  In 
          support of its petition, the owner submitted inter alia a copy of 
          the May 25, 1993 request for evidence from the DHCR directing the 
          owner to submit evidence regarding apartment 12N in the subject 

               The Commissioner is of the opinion that this petition should be 
          granted in part.


               An examination of the records in this case including the 
          documentary evidence submitted by the owner discloses that the owner 
          did submit sufficient evidence in the form of paid invoices to show 
          it spent $267.39 (including tax) for a new stove and $339.47 
          (including tax) for a new refrigerator installed when the subject 
          apartment was vacant immediately prior to occupancy by the tenant 
          herein.  Accordingly the owner is entitled to an additional rent 
          increase of $15.70 for these items ($267.39 plus $339.47 = $606.86 
          divided by 40 = $15.17)  Adding this to the fair market rent found 
          by the Rent Administrator - $595.93 (which already includes a rent 
          increase of $23.14 due to other improvements) gives a fair market 
          rent of $611.10 effective April 1, 1989 and a total excess rent of 
          $31,211.70 to be paid to the tenant herein.  The Rent 
          Administrator's order is hereby modified to reflect the above 

               With regard to the owner's contention that it was not afforded 
          an opportunity to submit comparability data, the record shows that 
          the owner was afforded such opportunity and that the owner cited 
          Apartment 12N in the subject premises as a comparable.

               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 did not submit evidence to show 
          that Apartment 12N cited as a comparable met the requirements listed 
          above although given two opportunities to do so.  The owner never 
          showed that the rent cited for Apartment 12N was the initial 
          stabilized rent nor that an initial apartment registration form (RR- 
          1 form) or a DC-2 form had been served.  Rather the owner only 
          submitted evidence that the annual apartment registration forms had 
          been served on the tenant in occupancy of Apartment 12N.  Therefore 
          the Rent Administrator correctly did not use any comparability data 
          in determining the fair market rent of the subject apartment.

               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 seek to enforce this order by filing an 

          apropriate action in a court of competent jurisdiction.  A copy of 


          this order is being sent to the current occupant of the subject 

               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, granted in part, and, that the order of the Rent 
          Administrator be, and the same hereby is, modified in accordance 
          with this order and opinion.  The total amount of excess rent 
          through August 31, 1993 is $31,211.70 and the fair market rent 
          effective April 1, 1989 is $611.10.

                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner




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