BE 410301 RT
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.: BE 410301 RT
DAVID A. HOFF,
DRO DOCKET NO.: U 3123469 R
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On July 2, 1987, the above-named petitioner-tenant filed a
Petition for Administrative Review against an order issued on
June 9, 1987 by the District Rent Administrator, 10 Columbus
Circle, New York, New York, concerning housing accommodations
known as Apartment 6D at 680 Fort Washington Avenue, New York,
New York.
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 proceeding was originally commenced by the filing of a rent
overcharge complaint form by the tenant with the New York City
Conciliation and Appeals Board on March 8, 1984, one of the
predecessor agencies to the Division of Housing and Community
Renewal (DHCR). The tenant took occupancy pursuant to a lease
commencing May 15, 1978 and expiring May 31, 1981 at a monthly
rent of $425.00.
The owner was served with a copy of the complaint and was
requested to submit rent records to prove the lawfulness of the
rent being charged. In answer to the complaint, the owner
submitted rent records from May 15, 1978 and a Landlord's Report
of Statutory Decontrol indicating that the tenant was the first
stabilized tenant to occupy the subject apartment.
On December 11, 1986, the Administrator issued Order No. CDR
28,246, finding no overcharge, and dismissing the tenant's
complaint. By letter of December 15, 1986, the tenant requested
that the case be reopened for processing as a fair market rent
appeal.
BE 410301 RT
By order issued on May 5, 1987 the Administrator revoked the
December 11, 1986 order and reopened the proceeding for
processing as a fair market rent appeal.
In answer, the owner submitted a copy of a DC-2 notice and a
certified mail envelope addressed to the tenant which was
returned to the owner by the post office marked "unclaimed" on
May 19, 1978.
By correspondence dated May 5, 1987 and May 20, 1987, the tenant,
among other things, requested a determination of the lawfulness
of his initial rent.
On June 9, 1987, in the order under appeal herein, the
Administrator rejected the fair market rent appeal as untimely,
and confirmed that the initial lawful rent for the apartment was
$425.00, as charged and paid on May 15, 1978.
In his petition, the tenant contends he never received the DC-2
notice from the owner and thus seeks reversal of the Order.
The owner, in its answer to the petition, reasserts that the DC-2
was mailed to the tenant by certified mail which was returned to
the owner unclaimed.
The Commissioner is of the opinion that this petition should be
denied.
Section 25 of the Code provides that a fair market rent appeal
application must be filed within 90 days of receipt of the
initial legal regulated rent notice (DC-2 notice). Section 26 of
the Code provides that said notice shall be served by the owner
on the tenant by certified mail.
In the instant case, the record indicates that the owner
endeavored to follow the required procedure by mailing a DC-2
notice to the tenant at the correct address by certified mail.
The post office attempted and was unable to deliver this notice.
The tenant filed his fair market rent appeal almost six years
later.
The Commissioner finds that the owner fulfilled the requirements
of the Rent Stabilization Code in mailing the DC-2 notice to the
tenant by certified mail. There is no indication in this case
that the owner attempted to evade the legal requirements for
service of the notice. The responsibility for the tenant's
failure to receive the notice cannot be said to lie with the
owner after the owner duly mailed the notice. The Commissioner
therefore finds that the Administrator properly dismissed the
tenant's fair market rent appeal as untimely filed.
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.
BE 410301 RT
ISSUED:
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ELLIOT SANDER
Deputy Commissioner
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