STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
WYNDHAM REALTY COMPANY, DRO ORDER NO.:
PETITIONER TENANT: ODDONE BOGLIONE
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
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
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
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
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,
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-
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
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
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
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,