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

     ------------------------------------X  SJR 2573
     APPEAL OF                              DOCKET NO.: ARL 09089-W
                                            DRO DOCKET NO.: WY-85-S-1-FS
                           PETITIONER    :  TENANT: JOHN SILBERNAGEL

                                 AFTER COURT REMIT

     This proceeding was commenced on October 23, 1985 by the filing of a  rent
     overcharge complaint by the tenant concerning housing accommodations known 
     as Apartment 3E at 811 Bronx River Road, Bronxville, New York.  The tenant 
     therein alleged that the owner had failed to file the  required  financial
     statement and was therefore precluded from  collecting  1985-86  guideline
     increases.  The tenant had entered into a  renewal  lease  on  October  1,

     The Division sent the owner a copy of the complaint and afforded the owner 
     an opportunity to answer.  The  owner  submitted  an  answer  denying  the
     tenant's  allegation  and  stated  therein  that  the  required  financial
     information had been timely filed.  The owner submitted with its answer  a
     copy of an October 28, 1985 transmittal letter to DHCR wherein  the  owner
     stated that a duplicate of the forms originally sent  in  April  1985  had
     been re-signed and re-dated and were then re-submitted.  The owner did not 
     include a copy of the report with the answer.

     By order issued on February 20, 1986, the  Administrator  determined  that
     the owner had failed to timely file the Operating and Maintenance Expenses 
     Schedule for the 1985-86 Guideline period and was therefore ineligible  to
     collect a guideline rent increase for  the  lease  commencing  October  1,

     The  owner  thereafter  filed  a  petition   for   administrative   review
     challenging the Administrator's order wherein the owner asserted that  the
     required financial information was timely filed in April 1985.

     The tenant filed an answer to the petition in which he merely referred  to
     what was already in the record.

     By order issued on June 30, 1987, the Commissioner found  that  the  owner
     had failed to establish timely filing of  the  Operating  and  Maintenance
     Expenses Schedule for 1985-86 and denied the owner's petition.

     The owner thereafter filed a petition in Supreme Court pursuant to Article 
     78 of the Civil Practice Law  and  Rules  challenging  the  Commissioner's


          DOCKET NUMBER: ARL 09089-W
     By order of Justice Kenneth H. Lange dated May 5, 1988, the Commissioner's 
     June 30, 1987 order was annulled and the proceeding was  remitted  to  the
     Division for further consideration of the owner's administrative appeal.

     By subsequent correspondence, the owner submitted an  affidavit  attesting
     to the filing of the required schedule in April 1985.  The owner has  also
     submitted to the Division a copy of the above-mentioned October  28,  1985
     transmittal letter along with the complete expenses report  and  certified
     mail receipts indicating mailing on October 30, 1985 and  receipt  by  the
     Division on November 1, 1985.  The Schedule is dated April 3, 1985 and  is
     redated October 28, 1985.

     After careful consideration, the Commissioner is of the opinion that  this
     petition should be granted.

     By resolution of the Westchester County Rent Guidelines Board,  any  owner
     who failed to file a 1985-1986 Property Maintenance  and  Operations  Cost
     Survey Schedule on or  before  a  prescribed  date  following  receipt  of
     written notice to do so was ineligible for guidelines rent  increases  for
     the period October 1, 1985 - September  30,  1986.   Notice  was  sent  to
     owners in March 1985 advising owner to file the schedule within 45 days of 
     receipt or by May 15, 1985, whichever date was later.

     Section 110 (9NYCRR Section 2508.1) of the Tenant  Protection  Regulations
     provides, in pertinent  part,  as  follows:   Notices,  orders,  protests,
     answers and other papers may  be  served  personally  or  by  mail.   When
     service is made personally or by mail, an affidavit by the  person  making
     the service or mailing shall constitute sufficient proof of service.  When 
     service is by registered of certified mail the return post office  receipt
     shall constitute sufficient proof of service.

     In the instant case, the owner has submitted an  affidavit  attesting  the
     timely filing of the Operating and Maintenance Expenses Schedule in  April
     1985.  It  is  noted  that  the  filing  year  in  question  predated  the
     requirement that owners mail the Schedule to  the  Division  by  certified
     mail.  It is further noted that  there  were  various  moves  of  Division
     offices and personnel responsible for receiving  these  statements  during
     the period when they should  have  been  received  by  the  Division.   In
     addition, there were an unusual number of  asserted  non-receipts  by  the
     Division followed up by credible claims of proper mailing by owners during 
     this period.

     Based on the evidence of record and the particular circumstances affecting 
     the filings during the guideline year in question, the Commissioner  finds
     that the  owner  timely  filed  the  Operation  and  Maintenance  Expenses
     Schedule for 1985-86 and that the owner was therefore eligible to  collect
     the guideline increase for the leases commencing between October  1,  1985
     and September 30, 1986.  Accordingly, the tenant's overcharge complaint is 

     Any arrears owed by the tenant as a result of this order may be repaid  to
     the owner in equal monthly installments over the course  of  the  next  24


          DOCKET NUMBER: ARL 09089-W
     THEREFORE, in accordance with the Tenant Protection  Regulations  and  the
     Emergency Tenant Protection Act, it is

     ORDERED, that this petition be, and the same hereby is granted,  the  Rent
     Administrator's order be, and the same hereby is revoked and the  tenant's
     overcharge complaint be and the same hereby is denied.


                                     JOSEPH A. D'AGOSTA
                                     Deputy Commissioner


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