Ullman Estates v. New York City Conciliation and Appeals Bd.

• Decision Date: 08 December 1983
• Citation: 469 N.Y.S.2d 366,97 A.D.2d 296
• Parties: In the Matter of the Application of ULLMAN ESTATES d/b/a Harper Management, as Managing Agent of Ullman Estates, Petitioner-Respondent, for a judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. NEW YORK CITY CONCILIATION AND APPEALS BOARD, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 366

469 N.Y.S.2d 366

97 A.D.2d 296

In the Matter of the Application of ULLMAN ESTATES d/b/a

Harper Management, as Managing Agent of Ullman

Estates, Petitioner-Respondent,

for a judgment pursuant to Article 78 of the Civil Practice

Law and Rules, v. NEW YORK CITY CONCILIATION AND APPEALS BOARD, Respondent-Appellant.

Supreme Court, Appellate Division,

First Department.

Dec. 8, 1983.

Iris J. Korman, New York City, of counsel (Ellis S. Franke, New York City), for respondent-appellant.

Clifford A. Entes, New York City, of counsel (Finkelstein, Borah, Schwartz, Altschuler & Goldstein, P.C., New York City), for petitioner-respondent.

Before SULLIVAN, J.P., and ROSS, FEIN, MILONAS and ALEXANDER, JJ.

ARNOLD L. FEIN, Justice.

New York City Conciliation and Appeals Board (CAB) appeals from a judgment remanding to the CAB for a new hearing the issue of the fair market rent value of Apartment 4C, premises 323 West 83rd Street, New York City. The CAB determination was based solely upon the Special Fair Market Rent Guidelines Order issued by the Rent Guidelines Board and not in conjunction with any comparables furnished by petitioner, or otherwise determined.

The CAB is authorized to determine the initial legal rental of a dwelling unit which had been destabilized under prior law, here the Vacancy Decontrol Act of 1971, and was being returned to rent stabilization upon the tenant's occupancy under lease in 1980, pursuant to the Emergency Tenant Protection Act of 1974 (ETPA, McKinney's Consol.Laws, §§ 8621-34, L.1974, c. 576, § 4) and the Rent Stabilization Law (RSL, N.Y.C.Adm.Code § YY51-6.0.2[b] ).

In order to determine the initial legal rental for such a unit, a tenant may file a tenant protest, a rent appeal from the rent determined by the landlord, as a free market first rent, if the tenant believes it exceeds the fair market rent.

When presented with such an appeal, the CAB is required by the statute to consider two factors in determining whether the initial agreed upon rent for the apartment exceeds the fair market rent. These two criteria are (1) the Special Rent Guidelines Board order, and (2) "the rents generally prevailing in the same area for substantially similar housing accommodations." What is involved is a statistical citywide guideline of rents for apartments as established by the CAB and a comparison of "comparable" rentals of similar apartments in the same area. Both criteria must be applied on a case by case basis (Matter of Bradcord Associates v. CAB, 52 A.D.2d 569, 384 N.Y.S.2d 388; Matter of Fresh Meadows Associates v. New York City CAB, 92 Misc.2d 519, 400 N.Y.S.2d 976, affd. 63 A.D.2d 943, 407 N.Y.S.2d 436).

The Board has developed citywide guidelines for such apartments. Under the Board's rules the owner (landlord) is required to submit rent rolls or leases to establish the June 30, 1974 rents for the lines of apartments in the subject building or other buildings submitted by the landlord to be used as comparables. The Board's requirement that the landlord submit the necessary data for comparable apartments has been approved as rationally based (Mtr. of A.J. Clarke Management Corp. v. CAB, 58 N.Y.2d 1108, 462 N.Y.S.2d 848, 449 N.E.2d 742, affg. 91 A.D.2d 517, 456 N.Y.S.2d 391; Mtr. of Century Operating Corp. v. Prince, 75 A.D.2d 536, 426 N.Y.S.2d 784). As these cases hold, the burden is on the landlord to furnish the data covering comparables ( Mtr. of Axelrod Management Co. v. CAB, 95 A.D.2d 691, 464 N.Y.S.2d 1). Where the owner fails to provide the necessary documentation for June 30, 1974 comparable rents, the Board is authorized to utilize the Special Rent Guidelines Board order without resort to comparable rents (Mtr. of A.J. Clarke Management Corp. v. CAB, supra; Mtr. of Axelrod Management Co. v. CAB, supra; Mtr. of Century Operating Corp. v. Prince, supra). Here the landlord submitted the rents of the other apartments in the "C" line, which the Board declined to use because they were all rent controlled apartments. To rely upon such figures would deprive the landlord of a proper right (Matter of Fresh Meadows Associates v. New York City CAB, supra).

Accordingly, the Board made several efforts to obtain the appropriate figures for comparable apartments from the owner. The landlord failed to submit similar comparables although he was thrice requested to do so.

Finally reacting to the Board's pressure, the landlord furnished a real estate broker's list purporting to describe comparable apartments as follows:

                340 West 89th Street, Apt. 5

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