DOCKET NUMBER: AJ 410263-RO
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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: AJ 410263-RO
:
DISTRICT RENT ADMINISTRATOR'S
509 EAST 88TH STREET DOCKET NO.: 1600
CORPORATION. PETITIONER :
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ORDER AND OPINION REMANDING THE PROCEEDING TO THE RENT ADMINISTRATOR
On October 10, 1986, the above-named owner filed a petition for
administrative review of an order issued on September 23, 1986 by a
District Rent Administrator concerning the housing accommodation known as
Apartment 3A, 509 East 88th Street, New York, New York, wherein the owner
was directed to roll back the rent and to refund overcharges of $1042,47,
including excess security.
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issues
raised by the petition for review.
On June 18, 1984, the subject tenants, Lorraine and Leonard Gardner, filed
an objection to the Rent/Services registration with the Division of
Housing and Community Renewal (DHCR), stating, inter alia, that it was a
fair market rent appeal.
On October 5, 1984, the D.H.C.R. served a copy of the tenant's complaint
upon the owner and informed the owner,
If you or a previous owner served a DC-1 or DC-2
Notice of Initial Legal Regulated Rent on the first
stabilized tenant or subsequent tenant(s), please
supply the Division of Housing and Community Renewal
with a copy of such notice plus proof (certified)
mailing. However, if you do not have a copy of a DC-1
or DC-2 Notice, you must submit a copy of all leases
on subject apartment in effect on or after June 30,
1974.
On October 11, 1984 the owner interposed an answer to the tenant's
complaint attaching prior leases for the subject apartment.
On March 5, 1985 the owner was directed to submit a floor plan of the
subject apartment in answer to the tenant's room count challenge.
On March 11, 1985 the owner submitted the floor plan.
On December 9, 1985 the owner was directed to submit the following
information:
DOCKET NUMBER: AJ 410263-RO
1. Status of the above apartment.
2. Submit R-42, Statutory Decontrol Order.
3. M.B.R.'s, and M.C.R.
4. Registration card in the subject apartment.
5. Fuel cost adjustment.
On January 7, 1986 the owner submitted the requested information.
On May 12, 1986 the Administrator directed the owner to inform the
Division of the exact square footage of the kitchen.
On May 19, 1986 the owner submitted the requested information.
On June 19, 1986 the Administrator requested the owner to submit the lease
for the subject apartment for the period January 3, 1982 to December 1,
1985.
On July 10, 1986 the owner submitted the requested lease.
The Administrator issued the order here under review on September 2, 1986
finding inter alia that the owner had failed to respond with "the
necessary data," finding that the initial rent exceeded the fair market
rent, establishing the stabilized rent and directing the owner to roll
back the rent and refund excess rent and security paid by the tenant.
In its petition for administrative review the owner requests reversal of
the administrator's order alleging inter alia.
...when your office requested information regarding
this apartment we submitted same forthwith. You state
at the bottom of Page 1 a copy of the Tenant's Fair
Market Rent Appeal was served on the owner and to date
the owner has failed to respond. This owner has
without fail answered request made and will again
produce, if required, every evidence that such reply
was received and receipted by the requesting agency.
The tenant interposed an answer in opposition to the owner's petition.
After careful consideration the Commissioner is of the opinion that this
proceeding should be remanded to the Rent Administrator for further
processing.
The Commissioner notes, given the owner's submission of the full rental
history of the subject apartment, that the "necessary data" which was not
before the Administrator, was the Notice of Initial Regulated Rent and
proof of certified mailing to the first stabilized or subsequent tenant.
During the proceeding under review the initial demand for information sent
to the owner on October 5, 1984 (cf.supra) was answered by the owner's
submission of the rental history. Subsequent to this submission the
administrator made no fewer than four separate demands for information yet
not once did he request that the owner submit the missing data (DC-2
DOCKET NUMBER: AJ 410263-RO
notice and proof of certified mailing). In the opinion of the
Commissioner a reasonable owner who is complying with each and every
Administrator's request for information would not have been on notice that
necessary data was lacking. Although the administrator's failure to
advise the owner of deficient submissions is not, per se, a denial of due
process, when coupled with the fact that four specific requests were made
of the owner for information and that certain specific information was not
requested (to wit information crucial to the owner's case) it becomes so.
Moreover, the Commissioner notes that the fair market rent appeal
proceeding under review is subject to the provisions of current Rent
Stabilization Code and that the owner was not afforded the opportunity to
submit comparability data pursuant to the provisions of Section 2522.3 of
the Code. The Division's failure to afford the owner such an opportunity
was also a denial of due process.
Finally, the Commissioner notes that the Administrator did not, prior to
issuance of the order under review, serve upon the owner a Summary Notice.
The Commissioner notes that it is standard procedure of this Division to
serve such a summary notice on the owner when processing Fair Market Rent
Appeals.
In Nicholas v. Kahn, 47 Ny2d 24, 416 NYS 2d565, the Court of Appeals
stated,
The cornerstone of administrative law is derived from
the principle that the Legislature may declare its
will, and after fixing a primary standard, endow
administrative agencies with the power to fill in the
interstices in the legislative product by prescribing
rules and regulations consistent with the enabling
legislation.
A District Rent Administrator is authorized to promulgate rules and
regulations for the processing of tenant complaints.
However, once those rules and regulations are promulgated it is mandatory
that the Division abide by its own established policy, and apply it
uniformly. To treat one case differently from all other cases is
arbitrary and capricious as a matter of law.
Accordingly, for all of the hereinabove-mentioned reasons the Commissioner
finds that the owner was denied due process in the proceeding under review
and that this proceeding should be remanded to the Rent Administrator for
re-processing of the tenant's fair market rent appeal.
THEREFORE, in accordance with the Rent Stabilization Law and Code, and the
Emergency Tenant Protection Act of 1974, it is
ORDERED, that this proceeding be, and the same hereby is, remanded to the
Rent Administrator to reprocess the tenant's fair market rent appeal. The
previously issued order remains in full force and effect until a new order
is issued on remand.
DOCKET NUMBER: AJ 410263-RO
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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