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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.: BG 410305 RT
CAROLYN SHERBIN,
DRO DOCKET NO.: TC 074038 G
CDR 30,673
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND
REMANDING PROCEEDING ON APPEAL
On July 27, 1987, the above-named petitioner-tenant filed an appeal
against an order issued on June 26, 1987 by the District Rent
Administrator, 10 Columbus Circle New York, New York concerning the
housing accommodations known as Apartment 8B, 95 Christopher Street,
New York, New York wherein the District Rent Administrator
determined that the owner had not overcharged the tenant.
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 record indicates that in July 1983 the tenant herein filed a
complaint of rent overcharge in which she stated that the rent for the
apartment was overestimated in "Fair Market Value". In support of her
contention, the tenant submitted a redacted copy of the Maximum Base
Rent (MBR) schedule for the building indicating a 1972/1973 MBR OF
$139.34.
In response, the owner stated that the subject apartment first became
rent stabilized on November 1, 1979 after it was vacancy decontrolled
from the Rent Control Law. In support of such contention the owner
submitted copies of all leases from November 1, 1979 through June 30,
1984. The owner also submitted a copy of a DC-2 Notice addressed to
the 1st Rent Stabilized Tenant
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(S. Halpert) who took occupancy pursuant to a 2 year lease commencing
November 1, 1979 at a monthly rental of $515.00. The owner also
attached a photo copy of United States Postal Service (hereafter USPS)
Form 3800 (April 1976) "Receipt for Certified Mail". However this form
was not completed with the name and address of the addressee nor was
it date stamped by the USPS. In addition, the certified mail
registration number was omitted.
In subsequent correspondence dated September 15, 1983 and August 28,
1985 the tenant through her representative specifically reiterated that
her complaint should be processed as a Fair Market Rent Appeal of the
initial rent charged on November 11, 1979 and that the owner had not
established proof of service of the DC-2 Notice.
The tenant vacated the subject apartment on March 31, 1984 but
submitted a forwarding address.
The Rent Administrator then issued the Order under appeal herein
finding that based on the initial Rent of $515.00 charged on November
1, 1979 that the owner had not collected a rent in excess of the lawful
stabilization rent and dismissed the tenant's complaint.
In the petition, the tenant states in substance that the Rent
Administrator had erroneously failed to consider the tenant's Fair
Market Rent Appeal originally stated on her initial complaint and
failed to consider the tenant's objection stated in the correspondence
of September 15, 1983 and August 28, 1985 that the owner had failed to
verify the service of the DC-2 Notice by the submission of the required
proof of service by certified mail of the DC-2 notice on the First Rent
Stabilized tenant.
In response to the tenant's petition, the owner stated in substance
that it did submit sufficient proof of service of the DC-2 Notice and
that the Rent Administrator's order was warranted.
The Commissioner is of the opinion that this proceeding should be
remanded to afford the owner the opportunity to submit the required
proof of service of the DC-2 Notice on the First Rent Stabilized
tenant. If the owner fails to submit valid proof of service of the DC-
2 Notice by certified mail on the first rent stabilized tenant, the
tenant's complaint must be processed as a fair market rent adjustment
application on the merits rather than a rent overcharge since in her
original complaint the tenant was questioning the initial legal
regulated rent of the subject apartment.
Accordingly, this proceeding is being remanded to treat the tenant's
complaint as a fair market rent adjustment application filed prior to
April 1, 1984. All parties are to be notified and given a chance to
submit evidence in such remanded proceeding including evidence as to
whether the first rent stabilized tenant was served with the required
DC-2 notice.
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THEREFORE, in accordance with the Rent Stabilization Law and Code, it
is
ORDERED, that this petition be, and the same hereby is, granted and to
the extent of remanding this proceeding to the District Rent
Administrator for further processing in accordance with this order and
opinion.
ISSUED:
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JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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