ARL 11152-L
                                
                        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
                                
                                
----------------------------------x
IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
APPEAL OF                               DOCKET NO.:
                                        ARL 11152-L
       WYNDHAM REALTY COMPANY,          DRO ORDER NO.:
                                        CDR 18,158
                        PETITIONER      TENANT: ODDONE BOGLIONE
----------------------------------x


  ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
                      UPON RECONSIDERATION
                                
                                
On  June  19,  1986,  the  above-named petitioner-owner  filed  a
Petition  for  Administrative Review against an order  issued  on
June 12, 1986, by the Rent Administrator, 10 Columbus Circle,
New  York,  New York concerning housing accommodations  known  as
Apartment 6-A, 166 Second Avenue, New York, New York, wherein the
Administrator  determined  that the  tenant's  initial  rent  had
exceeded  the fair market value and ordered a refund of $5,487.43
in excess rent and excess security.

The  Commissioner notes that this proceeding was initiated  prior
to  April  1, 1984.  Sections 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  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.

The tenant commenced this proceeding on March 30, 1984, by filing
a  Fair  Market Appeal (FMRA) with the New York City Conciliation
and  Appeals  Board  (CAB),  the  agency  formerly  charged  with
enforcing  the  Rent  Stabilization Law, based  in  part  on  the
allegation that the tenant's initial September 1, 1983 rent of
$850.00  was  the  first stabilized rent  and  that  the  1972-73
max-imum base rent (MBR) was $256.91.  The tenant further alleged
that  the owner had served the tenant with the R-42 Form  (Report
of  Statutory Decontrol) but had failed to serve the tenant  with
the DC-2 Notice which would have notified the tenant of the right
to  file a FMRA within 90 days of receipt of the notice.  A  copy
of the R-42 Notice, showing it had been received by the Office of
Rent  Control on September 8, 1983, was attached to the  tenant's
FMRA.

On October 17, 1984 the owner was notified by the DHCR that the
tenant had filed a FMRA.  The owner was requested to submit a
copy of any DC-1 or DC-2 Notice which had been served on the
first stabilized tenant of the subject apartment.  The owner was
advised that failure to submit such copy within ten days would
result in the continuation of the processing of the tenant's
FMRA.

On October 22, 1984 the owner responded in full:

         "With reference to your correspondence dated
          October 17, 1984, regarding the above Docket
          No. [L 3110533-T], I would appreciate it if
          you would send me a copy of the complaint."
          
No DC-2 Notice was submitted with this response.

In a letter dated December 17, 1985 the owner stated in full:

         "Please be advised that our counsel has re-
          viewed the information relative to the above
          Docket No. [L 3110533-T; 1994], and in our
          counsel's opinion, there is no overcharge."
          
No documentation was submitted with this letter.

On April 2, 1986, the Division served a copy of the tenant's FMRA
on  the  owner, requested a copy of any DC-1 or DC-2 Notice,  and
requested  the normal documentation of comparable rents necessary
to  process a FMRA.  In a separate notice mailed the same day the
owner  was requested to submit certain information regarding  the
Fuel Cost Adjustment (FCA) for 1983.

In  a  letter  dated  April  9, 1986, the  owner  stated  it  was
en-closing  comparability  data which the  owner  alleged  proved
there was no overcharge.  The owner noted that the proceeding had
received  Docket No. 1994 in addition to Docket No. L  3110533-T.
Again,  no  DC-2 Notice was submitted, nor did the  owner  allege
that the FMRA was untimely.

In  a letter dated April 28, 1986, the owner requested a two week
extension  to  find  documentation of the cost  of  a  stove  and
refrigerator  which had been put in the subject  apartment.   The
documentation was subsequently submitted on May 1, 1986.

On May 5, 1986 the owner was notified that seven named apartments
would  be  considered for the comparability study  and  that  the
costs of the refrigerator and stove would also be considered. The
owner was given ten days to comment.

No comment was received.

In  Order  No. CDR 18,158, issued June 12, 1986 the Rent Adminis-
trator  determined that the owner had failed to submit  proof  of
service  of a DC-1 Notice and using the comparable data,  Special
Guidelines  Order  Number  14, and the  cost  of  the  stove  and
refrigerator, determined the fair market rent to be $427.89 as of
September 1, 1983 rather than the $850.00 paid by the tenant. The
order noted that the owner had failed to submit data on the  1983
FCA.

In   this   petition,   the   owner  contends   that   the   Rent
Administrator's order is incorrect and should be modified because
the  order  failed  to  take  into account  that  the  owner  had
submitted  a  DC-2  Notice  along with the  certified  mail  card
evidencing receipt by the tenant.  Furthermore, the owner  argues
for the first time that the FMRA was untimely "as the DC-2 Notice
was  dated  September 28, 1983" but the complaint was  not  filed
within 90 days thereof. The owner also alleges that the DHCR  had
never requested the data regarding the 1983 FCA.  Attached to the
owner's  petition  is a purported copy of  a  DC-2  Notice.   The
notice  is undated.  Also attached is a copy of a return  receipt
for certified mail sent to the tenant.  The receipt is postmarked
September 26, 1983.  There is no proof submitted that these items
had  been submitted to the Administrator nor is the date  of  the
alleged submission stated.

On  May  22,  1989 the Commissioner issued an Order  and  Opinion
granting  the owner's petition based on the assumption  that  the
tenant  had  failed to answer the owner's petition.  The  Opinion
held  that the FMRA was untimely based on the owner's allegations
regarding the DC-2 Notice.

On   May   30,   1989   the   tenant,  through   his   authorized
representa-tive, submitted a copy of an answer to the  petitioner
together with proof of mailing to and receipt by the DHCR.


Accordingly,  on June 14, 1989 the Commissioner issued  an  Order
Granting  Tenant's Request for Reconsideration and  Reopening  of
Administrative Review Order and Opinion ARL 11152-L.

The  present Order and Opinion is issued pursuant to the June 14,
1989 Order.

In  answer  to  this  petition, the tenant contends  through  his
representative  that the Administrator's Order  was  correct  and
should  be  affirmed.  The tenant notes that the  Administrator's
order  contains  no  indication  that  a  DC-2  Notice  had  been
sub-mitted  to the Administrator by the owner.  Furthermore,  the
tenant denies receiving a DC-2 Notice from the owner.  The answer
notes  that  the tenant has vacated the apartment.  In  addition,
the  tenant requests a hearing if necessary to determine  whether
the tenant had been served with the DC-2 Notice.

In  a  letter  dated  June  19, 1989,  the  owner  expresses  its
"outrage" at the reopening of this proceeding.  In addition,  the
owner  alleges that "no new information [has been] added  to  the
file by the tenant" and that there is no substantiation that  the
tenant's  representative  is empowered to  represent  the  tenant
regarding  this  petition.   The  owner  alleges  that  only  the
repre-sentative and not the tenant has denied the receipt of a DC-
2 Notice.

The owner states that "the only information that may indicate the
tenant did not receive a DC-2 Notice  is a letter written by  the
tenant's roommate [who has the same last name as the tenant]  and
not the tenant."  The owner argues that the letter should not  be
admitted as evidence since "there was no relationship of  record"
to the tenant at the time in question."

The  owner  further argues that at best a "roommate or subsequent
wife"  of  the tenant may have authorized the tenant's represent-
ative to seek reconsideration of the Commissioner's order of  May
22, 1989.

In  addition,  the owner alleges that the tenant's representative
works  on  a contingency fee basis and is therefore motivated  to
argue that the DC-2 Notice be disallowed.  The owner alleges that
the representative has made similar claims in other proceedings.

Furthermore,  the  owner requests a hearing to determine  whether
the  proofs  of certified mailing submitted by the representative
were  actually  for this proceeding or for another proceeding  in
which  the  representative is involved.  In addition,  the  owner
requests  a  hearing  to present the original  proof  of  mailing
receipt as well as an "original duplicate" of the DC-2 Notice.

On August 25, 1989, the tenant's representative submitted a sworn
notarized affidavit by the complaining tenant stating in part  "I
never received DC-2 Notice form and that the only paper given  me
by  the landlord was the Landlord's Report of Statutory Decontrol
dated  September 2, 1983."  The tenant further states his  belief
that  the  certified mailing he received from the owner contained
something other than a DC-2 Notice, such as the R-42 form or  the
tenant's  first  lease.  The affidavit states  that  the  owner's
petition  had  been forwarded to the tenant, who now  resides  in
Italy, by the tenant's representative.

In  a  letter dated October 19, 1989 the owner's attorney supple-
mented  the  owner's response, accusing the tenant's  representa-
tive  of  scheming to defraud the owner through  this  and  other
proceedings  and  alleging that the representative  "at  no  time
represented  the  original  tenant to  [this]  proceeding."   The
attorney  notes the lack of a sworn affidavit or other  corrobor-
ated  or  substantial evidence in support of the representative's
claim that the tenant never received the DC-2 Notice.

In  a letter dated December 20, 1989, the tenant's representative
asks that an overcharge complaint filed by the succeeding tenants
of the subject apartment be consolidated with this proceeding.

The  Commissioner  is of the opinion that, upon  reconsideration,
this petition should be denied.

At  the outset the Commissioner notes that a date-stamped copy of
the  tenant's  answer  to this petition is now  in  the  records.
Furthermore,  it  was  received in the  certified  mailing  whose
number appears on its face.  Accordingly, the owner's request for
a  hearing to determine if the answer was really included in  the
mailing is hereby denied.

Furthermore,  the Commissioner finds that the owner's  contention
that  the tenant's representative was not authorized to represent
the  tenant  in  this  proceeding and the  reopening  thereof  is
with-out   merit.    Section   2529.1(b)(2)   requires    written
authorization to file a petition.  No such requirement exists for
a  represent-ative to answer a petition.  Moreover, in  a  letter
dated  March  22, 1984, the tenant authorized the  representative
"to be my
representative  and  counselor in all  communications  with  your
agency."  In addition, in a letter dated April 4, 1985 the  owner
offered  to  settle  this  matter, noting  that  the  tenant  had
author-ized  the  representative herein "to  be  your  authorized
agent with respect to this DHCR complaint."



Section  2529.6  of  the Code limits the scope  of  review  in  a
petition  "to  facts  or  evidence [which  were]  before  a  Rent
Administrator" unless the petitioner "establishes [that  material
submitted for the first time on appeal] could not reasonably have
been  offered or included in the proceeding prior to the issuance
of the order being appealed."

In  the present proceeding, notwithstanding the owner's claim  to
the contrary, the record shows clearly that neither the purported
copy of a DC-2 Notice nor the argument that the tenant's FMRA was
untimely was before the Administrator.

Although  alleging that the DC-2 Notice and proof of mailing  had
been  submitted to the Administrator, the owner does  not  submit
any  proof  of such submission, e.g., a copy of the cover  letter
that  accompanied the submission, nor does the owner  even  state
the  date of the alleged submission.  Nor does the purported copy
of  the DC-2 Notice bear a date showing when it was signed by the
owner.

Furthermore,  as the above-stated summary of the procedural  his-
tory  of  this  proceeding shows, the owner's actual  submissions
contradict  the allegation that a DC-2 Notice had been  submitted
by  the  owner to the Division.  For example, a DC-2  Notice  was
requested  from  the owner on October 17, 1984.  On  October  22,
1984,  the owner responded by asking for a copy of the complaint.
On  December  17,  1985  the  owner  stated  that  there  was  no
over-charge, but did not contest the timeliness of the action.

On  April 2, 1986 the owner was again asked for a copy of a  DC-2
Notice.   The owner did not respond with either such  copy  or  a
statement that it had already been submitted.  Instead, the owner
answered   on  the  merits,  submitting  documentation  regarding
com-parable rents and stated there was no overcharge - -  all  of
which was clearly unnecessary if the FMRA was untimely, i.e.,  if
the  tenant  had  been served with the alleged DC-2  Notice.   On
April 28, 1986, the owner asked for an extension of time and then
submitted  additional documentation on May 1, 1986.   On  May  5,
1986,  the owner was given the opportunity to respond to a notice
stating which apartments would be considered by the Administrator
in  determining the fair market rent.  No response  was  received
and  the  order being appealed was issued on June 12, 1986,  five
weeks after the last notice to the owner.

This  recitation shows clearly that the owner had  never  alleged
that  the FMRA was untimely.  By implication, it also shows  that
the  owner did not serve a DC-2 Notice on the tenant in September
of 1983.  Otherwise, there is no rational reason for not submit-

ting a copy of such notice to the Administrator, which would have
obviously  resulted in the dismissal of the tenant's FMRA.  Based
on  the  record as a whole it is clear that the certified mailing
most likely contained the R-42 form, which was dated September 2,
1983,  and  the  copy of which submitted by the tenant  bore  the
stamp  of  the  Office of Rent Control, showing receipt  by  that
agency on September 8, 1983.

The  R-42 form is designed to inform the agency that an apartment
has been vacancy decontrolled.  It does not inform the tenant  in
any way of the right to file a FMRA, nor does it state that there
is  a 90 day time limit to do so.  Accordingly, the tenant's FMRA
was timely, and was properly processed as such.  Accordingly, the
Administrator's  June 12, 1986 order is hereby  affirmed  in  all
respects.

The  holding  of a hearing is discretionary and the  Commissioner
hereby  finds  that the further delay caused by  such  a  hearing
would be unnecessary for the reasons stated above.

The tenant's request for consolidation with the proceeding of the
current tenant's is also denied. That proceeding is still pending
before the Administrator.  In general, there is no provision  for
consolidating  an  appeal with a proceeding before  the  Adminis-
trator.   Nevertheless, a copy of this Order and Opinion will  be
served on the current tenants.


THEREFORE, in accordance with the provisions of the Rent  Stabil-
ization Law and Code, it is


ORDERED,  that this petition be, and the same hereby  is,  denied
and  the  Rent Administrator's order be, and the same hereby  is,
affirmed.


ISSUED:



ELLIOT SANDER
                                         Deputy Commissioner
    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name