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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.: BB 410110 RO
Interiors by B & H, Inc., DISTRICT RENT ADMINISTRATOR
DOCKET NO.: 16932
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 2, 1987, the above named petition-owner filed a
Petition for Administrative Review against an order issued on
January 9, 1987, by the District Rent Administrator, 10 Columbus
Circle, New York, New York, concerning housing accommodations
known as Apartment 4RN, 1808 Second Avenue, New York, New York.
The issue in this appeal is whether the District Rent
Administrator's order was warranted.
The applicable sections of the law are sections 2528.4 &
2520.6(r) of the Rent Stabilization Code.
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant
to the issue raised by the administrative appeal.
This proceeding was commenced on August 4, 1984 by the tenant's
filing of an objection to the rent/services registration wherein
the tenant contended that she had not received the apartment
registration and that no registration form been posted in the
building. The tenant listed her mailing address as: P.O. Box 82,
Gracie Station, New York, New York 10028.
On December 14, 1984, the Division of Housing and Community
Renewal (DHCR) notified the owner that the tenant had filed an
objection to the registration.
On March 18, 1985, the tenant filed an amended objection to the
rent/services registration and contended in substance that the
owner still had failed to provide her with a copy of the
apartment registration, and that the owner had posted an undated
white DHCR copy of a building registration form.
On June 26, 1985, the owner was served with a Notice to Owner of
Failure to Register Apartments/Building, and was directed to
register all regulated apartments of the building within fifteen
days.
On June 28, 1985, the owner informed DHCR that the apartment had
been registered, and submitted copies of the following documents:
1) a letter from the Rent Stabilization Association of New
York City, Inc. (RSA) to the owner dated June 18, 1984
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stating that the rent registration worksheets had been
received and would be completed as soon as possible;
2) the 1984 Apartment Registration;
3) a certificate of mailing dated September 24, 1984 by the
RSA of the rent registrations to each apartment of the
subject building;
4) a certified mail receipt to DHCR dated December 20, 1984;
and
5) a copy of the envelope containing the RR-1 Form for the
subject apartment bearing a post office stamp "Refused
September 18, 1984."
On July 17, 1985, the tenant filed another objection to the
rent/services registration and contended in substance that she
finally received the 1984 apartment registration from the owner
on July 15, 1985, that she was being overcharged and was making a
fair market rent appeal, and that the owner had omitted from the
building services registration the removal of garbage left on the
first floor, an intercom system, and maintenance.
On November 1, 1985, the owner mistakenly refiled a petition for
administrative review against the DHCR notice to the owner of its
failure to register dated June 26, 1985 and contended in
substance that it never received from DHCR a copy of the tenant's
objection and that the tenant refused to accept the RR-1 when it
arrived in the mail. Note: This petition was subsequently
withdrawn by the owner (ARL 5763-L issued April 10, 1987).
In response, the tenant contended in substance that she requested
the apartment registration from the owner on July 17, 1984, but
was ignored by the owner; she did not refuse any letters which
were mailed to her at her residence; the envelope containing the
RR-1 Form which was allegedly mailed to the tenant had no route
carrier number or initials written on it; the owner knew on April
12, 1984 that she had asked the post office to forward her mail
from 1808 Second Avenue to 50 Lafayette Street and that from
March to October of 1984 her mail was routinely forwarded to 50
Lafayette Street; she was at work all day on September 17 and 18
of 1984 and would not have been able to encounter the mail
carrier; the copy of the envelope submitted by the owner clearly
indicated "address correction requested," but bears no address
correction label; and the owner's petition is improper because no
order had been issued by DHCR. In support of these contentions,
the tenant submitted copies of a certified letter from the tenant
to the owner dated July 17, 1984 requesting both the apartment
and building registrations and listing her mailing address as
P.O. Box 82, Gracie Station, New York, New York 10028; an
envelope addressed from the owner to the tenant at 1808 Second
Avenue, Apartment 4RN, New York, New York 10128 with a notation
"Do not forward, address correction requested" and bearing a
yellow sticker affixed by the post office stating "Return to
sender, Torney Margaret June, 50 Lafayette Street, New York,
New York 10013, return to sender, $.25 due"; and a letter from
the tenant to the owner dated May 18, 1984 reminding the owner
that she had provided the owner in August of 1982 with her Gracie
Station Post Office Box mailing address and that it was still her
mailing address.
On February 24, 1986, the District Rent Administrator issued an
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order finding that the owner had failed to respond to the
tenant's objection and that any rent increase collected by the
owner from April 1, 1984 to the date on which the tenant received
a copy of the registration must be refunded to the tenant.
On October 6, 1986, the District Rent Administrator reopened the
proceeding for further processing based on an irregularity in a
vital matter. The Administrator stated that the tenant's
overcharge claim and fair market rent challenge were addressed in
an order (TA-10284) issued August 14, 1986 wherein the fair
market rent appeal was dismissed and it was found that all rent
increases had been within the permissible guidelines. The
Administrator further stated that there were two remaining
unresolved issues: whether the services of trash removal,
maintenance and an intercom were improperly omitted from the
registration; and whether the tenant first received her copy of
the 1984 apartment registration on July 17, 1985.
On October 15, 1986, the tenant informed DHCR that in July of
1982 she obtained a post office box at Gracie Square Station to
which she requested the Post Office to forward all her mail; the
owner was notified of this change of mailing address but
continued to address her mail to the subject apartment address;
her forwarding address expired in March of 1984 and the Post
Office would no longer forward her mail to the post office box;
she retained her post office box and filed a new forwarding order
requesting that all her mail be forwarded from her residence
address to her office address at 50 Lafayette Street, 3 Floor E,
New York, New York 10013; the owner knew of her new forwarding
address as of April 1984; in September of 1984 the owner
complained of the tenant's use of her office address as her
mailing address so on October 3, 1984 the tenant cancelled her
office mailing address while still retaining her Gracie Station
post office box. In support of these contentions, the tenant
submitted copies of three envelopes postmarked in 1984 sent by
the owner to the tenant at her residence address with the post
office forwarding address labels listing the tenant's office
address. This response of the tenant was received by the DHCR,
but unfortunately was never delivered to or considered by the
Administrator.
On October 23, 1986, the owner made the following arguments to
DHCR: the 1984 registration was mailed by the RSA on September
14, 1984; the registration letter was "returned to sender" on the
ground that it was refused by the addressee; the tenant may not
allow her apparent refusal to accept mail to work to the
prejudice of the owner; the July 17, 1985 mailing of a copy of
the registration was made as a courtesy to the tenant on the
advice of a DHCR employee; the owner does not provide the service
of trash removal; instead a facility exists outside the building
for the tenants to deposit their trash; a superintendent is
located in the building and provides services as needed; and an
intercom was installed in the building in 1983. Again, this
owner response was received by DHCR, but was never delivered to
or considered by the Administrator.
On January 9, 1987, the District Rent Administrator determined
that neither the owner nor the tenant had submitted a response to
the notice of reopening, and based upon the owner's failure to
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refute the tenant's claims found that the owner did provide the
services of trash removal and an intercom, that the owner was
always obligated to maintain building services, and that the
tenant received a copy of the 1984 registration on July 17, 1985.
The Administrator advised the owner that any rent increase
collected between April 1, 1984 and July 17, 1985 must be
refunded to the tenant.
In this petition, the owner contends in substance that the
District Rent Administrator's order is incorrect and should be
reversed because the owner did in fact submit an answer in the
reopened proceeding via certified mail return receipt; its answer
fully proved that the owner had timely served the apartment
registration on the tenant in a manner prescribed by law; the
registration was returned to the owner on the ground that it was
refused by the tenant; and a second copy of the registration was
mailed to the tenant sometime later as a courtesy upon the advice
of DHCR.
In response, the tenant contends in substance that the owner's
petition should be denied because the owner did not timely
register the apartment and never intended for the tenant to
receive a copy of the registration form; the tenant never refused
any mail addressed to her at the building address; a letter sent
with a certificate of mailing does not allow for a notice to
claim or for a refusal to accept, rather such mail is put
directly into the addressee's mailbox; the owner already knew
that the residential address was not being used by the tenant for
receiving mail and that she had placed a forwarding order with
the post office; the owner had requested from the tenant this
forwarding address before the purported September 1984 mailing;
and the RR-1 envelope was prestamped "Address Correction
Requested" which indicates that the owner knew that the envelope
would not be forwarded on to the tenant at her mailing address,
but would be returned, instead, to the owner. The tenant also
demands that the owner immediately refund the amount of rent
illegally collected between April 1, 1984 and July 17, 1985.
The Commissioner is of the opinion that this petition should be
denied.
Firstly, the Commissioner finds that both the owner and tenant
submitted responses in the reopened proceeding, and that the
Administrator erred in basing his decision on the owner's alleged
failure to refute the tenant's claims.
With regard to the owner's contention that it had timely and
properly served the tenant with the 1984 apartment registration,
the Commissioner notes that on the date (September 14, 1984) the
1984 apartment registration was mailed by the RSA to the tenant
the owner was aware that the tenant did not receive her mail at
the subject apartment address, but rather that the post office
was forwarding her mail to her office address; the 1984 apartment
registration was mailed to the tenant at the subject apartment
address; the envelope which contained the 1984 registration was
prestamped "address correction requested" and would cause the
envelope to be returned to the owner with the tenant's forwarding
address; and the envelope was returned to the owner marked
"refused September 18, 1984", but with no address correction
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label and with no carrier initials or number on the envelope.
Based on these facts, the Commissioner finds by a preponderance
of the evidence that the owner did not timely or properly serve
the 1984 apartment registration upon the tenant until July 17,
1985. Accordingly, the Commissioner finds that the Administrator
correctly advised the owner that any rent increase collected
between April 1, 1984 and July 17, 1985 must be refunded to the
tenant.
With regard to the owner's contention that it does not provide
the service of trash removal, the Commissioner notes that the
owner has not submitted any evidence to support its bare
allegation, either during the proceeding before the Administrator
or on appeal. The Commissioner further notes that the owner has
admitted to installing an intercom in the subject building.
Thus, the Commissioner finds that the owner does provide the
services of an intercom and the removal of garbage left on the
first floor of the building.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is, denied,
and that the District Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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