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.: ARL 09089-W
:
DRO DOCKET NO.: WY-85-S-1-FS
RIVER ROAD ASSOCIATES,
PETITIONER : TENANT: JOHN SILBERNAGEL
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
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,
1985.
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,
1985.
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
order.
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
denied.
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
months.
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.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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