DOCKET NUMBER: AJ-410364-RT
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 NUMBER: AJ-410364-RT
:
DANIELA NOE, : DISTRICT RENT OFFICE
: DOCKET NUMBER: L-3115178-R
: CDR 22,005
PETITIONER :
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ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
On October 6, 1986, the above-named petitioner-tenant filed a
Petition for Administrative Review against an order issued on
September 8, 1986 by the Rent Administrator, 10 Columbus Circle,
New York, New York concerning the housing accommodations known as
Apartment 3-N, 283 Mott Street, New York, New York, wherein the
District Rent Administrator determined that the owner had
overcharged the tenant.
The Commissioner notes that this proceeding was initiated prior
to April 1, 1984. Section 2526.1(a)(4) and 2521.1(d) of the Rent
Stabilization Code (effective May 1, 1987) governing rent
overcharge and fair market rent proceedings provide that
determination of these matters be based upon the law or code
provisions in effect on March 31, 1984. Therefore, unless
otherwise indicated, reference to sections of the Rent
Stabilization Code (Code) contained herein are to the Code in
effect on April 30, 1987.
The issue in this appeal is whether the District Rent
Administrator's order was warranted.
The applicable sections of the law are Sections 25 and 26 of the
former Rent Stabilization Code and Section 2522.3 of the current
Rent Stabilization Code.
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 administrative appeal.
This proceeding was commenced on March 23, 1984 by the tenant's
filing of a rent overcharge complaint and a fair market rent
appeal with the New York City Conciliation and Appeals Board
(CAB), the agency formerly charged with enforcing the Rent
Stabilization Law.
On October 9, 1984, the owner was served with a copy of the
tenant's overcharge complaint and was requested to submit rent
records to prove the lawfulness of the rent being charged.
DOCKET NUMBER: AJ-410364-RT
In its answer to the tenant's overcharge complaint, the owner
submitted a complete rental history for the subject apartment.
In Order Number CDR 22,005 issued September 8, 1986, the
District Rent Administrator determined that the tenant had been
overcharged since June 1, 1983 and accordingly directed the owner
to refund to the tenant $461.24 which included excess security
and interest on that portion of the overcharge occurring on or
after April 1, 1984.
In this petition, the tenant contends in substance that the
District Rent Administrator's order is incorrect and should be
modified because the Administrator ignored her fair market rent
appeal.
In response, the owner contends in substance that the tenant
should not be allowed to convert her overcharge complaint into a
fair market rent appeal after a decision on the original
overcharge complaint has been rendered. The owner further
contends that the tenant's fair market rent appeal is, in any
event, time-barred because the tenant was served with the DC-2
Notice, but failed to file a fair market rent appeal within 90
days of service of the DC-2 Notice. In support of these
contentions, the owner submits copies of certified mail return
receipts dated March 1982.
In rebuttal, the tenant contends in substance that she was never
served with a DC-2 Notice and that she did file a fair market
rent appeal along with her overcharge compliant in Mach of 1984.
In surrebuttal, the owner contends in substance that the tenant's
allegations are either false or incompetent.
The Commissioner is of the opinion that this proceeding must be
remanded to the District Rent Administrator for further
consideration.
A review of the record in the instant case indicates that the
tenant did file a fair market rent appeal in March of 1984, but
that the Administrator failed to process the tenant's appeal.
Accordingly, this proceeding must be remanded to determine
whether the tenant was entitled to challenge the initial legal
regulated rent pursuant to Sections 25 and 26 of the former Rent
Stabilization Code, and if so, to determine whether the initial
legal regulated rent exceeded the fair market rent for the
apartment. All parties are to be notified and given a chance to
submit evidence in such remanded proceeding including evidence as
to whether the tenant was served with the DC-2 Notice. If the
tenant was served with the DC-2 Notice, then the tenant's fair
market rent appeal must be dismissed and the Administrator's
order affirmed unless the tenant's fair market rent appeal was
filed within ninety days after the tenant received the DC-2
Notice.
DOCKET NUMBER: AJ-410364-RT
THEREFORE, in accordance with the Rent Stabilization Code, it is
ORDERED, that this petition be, and the same hereby is granted to
the extent of remanding this proceeding to the district Rent
Administrator for further processing in accordance with this
order and opinion. The automatic stay of so much of the District
Rent Administrator's order as directed a refund is hereby
continued until a new order is issued upon remand. However, the
Administrator's determination as to the rent is not stayed and
shall remain in effect, except for any adjustment pursuant to
lease renewals, until the Administrator issues a new Order upon
remand.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
ADMINISTRATIVE REVIEW BUREAU
COVERING MEMORANDUM
ARB Docket No.: AJ-410364-RT
DRO Docket No/Order No.: L-3115178-R/CDR 22,005
Tenant(s): DANIELA NOE
Owner: NORMANDY MANAGEMENT COMPANY
Code Section: 25 AND 26 OF THE FORMER RSC; 2522.3 OF CURRENT RSC
Premises: 283 MOTT STREET, APARTMENT 3-N, NEW YORK, NY
ORDER AND OPINION REMANDING PETITION FOR ADMINISTRATIVE REVIEW
Administrator ailed to consider the tenant's Fair Market Rent
Appeal. Thus, matter remanded.
APPROVED:
Processing Attorney:
Supervising Attorney:
Bureau Chief:
Deputy Counsel:
Deputy Commissioner:
Mailed copies of Order and Determination to:
Tenant(s)
Owner
Tenant's Atty.
Owner's Atty.
Date: : by
Signature
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