Docket No. BH410331RO
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. BH410331RO
DISTRICT RENT
ADMINISTRATOR'S DOCKET
Barbara Sloan, NO. L005359R
PETITIONER
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ORDER AND OPINION TERMINATING PROCEEDING
On August 27, 1987, the above-named landlord filed a petition
for administrative review of an order issued on July 27, 1987 by a
Rent Administrator concerning the housing accommodation known as
the Top Floor Apartment, 263 West 12th Street, New York, New York.
This proceeding was commenced by the subject tenants filing a
rent overcharge dated September 25, 1985.
The subject tenants first took occupancy on March 1, 1964 at a
monthly rent of $115.00.
In her answer, dated January 20, 1987, the subject landlord
asserted, among other things, that the subject building only
contains two apartments, and that the landlord's address is the
same as the subject building's address.
On June 15, 1987, the Administrator mailed a "Notice of
Commencement of Proceeding To Determine Facts or Fix Maximum or
Legal Regulated Rent" to the subject landlord. The above-mentioned
notice proposed to determine that the subject apartment is rent
controlled and to establish its maximum rent at $132.00 per month
effective August 1, 1970. The notice also requested that the
landlord submit evidence of any improvements done to the subject
premises which would warrant an increase in the subject apartment's
maximum rent.
The record reflects that the landlord did not respond to the
above-mentioned notice.
In the order under review herein, the Administrator determined
that the subject apartment is rent controlled and that its maximum
rent is $132.00 per month effective August 1, 1970; that the
Administrator's order directed the landlord to refund to the
Docket No. BH410331RO
subject tenants all rents collected in excess of the legal maximum
rent with interest, beginning no earlier than two year prior to
September 26, 1985, and that the Administrator's order stated that:
"Owner may apply for rent adjustments for any improvements to
apartment and/or building since above date by requesting a Section
2202.22... and by entering the Maximum Base Rent System."
In her petition the subject landlord asserts, among other
things, that the rent agency mailed the aforementioned notice to an
address which was different than the address listed in the
landlord's answer; that the rent agency mailed the aforementioned
notice and the Administrator's order to "a defunct address"; that
after the expiration of the aforementioned renewal lease the
subject tenants had voluntarily agreed to pay rent in excess of
$132.00 per month; that since 1969 there have been building-wide
improvements done to the subject building at a cost of
approximately $20,341.83, and that the subject landlord acquired
the subject building in July, 1985.
To her petition the subject landlord attaches, among other
things, a list of various alleged improvements done to the subject
premises, and various cancelled checks and invoices relating to the
alleged improvements.
In their response, dated November 27, 1987, the subject tenants
assert, among other things, that after the subject landlord
purchased the subject building there has been a diminution of
services including: discontinuance of garbage pick-up at the
apartment door; no access to the washing machine and dryer in the
basement; no access to the storage space in the basement; "cleaning
of the stairs and hall leading to the apartment became sporadic and
later non-existent", and that the providing of heat is not
dependable.
Based on the record in this proceeding, the Commissioner finds
that the aforementioned "Notice of Commencement of Proceeding To
Determine Facts or Fix Maximum or Legal Regulated Rent" was mailed
to the landlord's prior address, and not the address that was noted
in the landlord's answer. Accordingly, the Commissioner finds that
the subject landlord was not given an opportunity, in the
proceeding before the Administrator, to submit evidence of
improvements done to the subject premises which would qualify for
rent increases.
However, the Commissioner is of the opinion that it is not
necessary to remand this proceeding to the Administrator. The
record reflects that on February 9, 1993, the rent agency mailed a
letter to the subject landlord at the subject building's address,
which is the address noted in the landlord's answer. The letter
asked the subject landlord if there is still an active issue to be
resolved in this proceeding. The record further reflects that on
February 25, 1993 the above-mentioned letter was returned to the
Docket No. BH410331RO
rent agency in an envelope marked "Returned to Sender-Attempted Not
known."
The rent agency's record and the record in this proceeding does
not contain a current address for the subject landlord. As the
subject landlord has not informed the rent agency of her current
address; that any notices which would have been mailed to the
subject landlord at her last known address would have been returned
to the rent agency as undeliverable; that as a result of the rent
agency not knowing the landlord's address, the Administrator would
not be able to request further evidence from the landlord as to
improvements done to the subject premises, the Commissioner is of
the opinion that remanding this proceeding to the Administrator
would be a waste of time as any remand proceeding would be
conducted without the knowledge of the subject landlord.
The Commissioner is accordingly of the opinion that this
proceeding should be terminated.
The Commissioner finds that the landlord's assertion that the
tenants' voluntarily agreed to pay rent in excess of the maximum
rent is irrelevant. Section 2200.15 of the City Rent and Eviction
Regulations state that: "An agreement by the tenant to waive the
benefit of any provision of the Rent Law or these regulations is
void."
The Commissioner is of the opinion that this order is issued
without prejudice to the landlord's right to file an application
with the rent agency for an increase in the subject apartment's
maximum rent due to apartment improvements and major capital
improvements, if the facts so warrant.
THEREFORE, in accordance with the provisions of the City Rent
and Rehabilitation Law and the Rent and Eviction Regulations, it is
ORDERED, that this proceeding be, and the same hereby is,
terminated.
ISSUED:
Joseph A. D'Agosta
Deputy Commissioner
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