Docket Number: BD410040-RT
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.: BD 410040-RT
JOAN BABCHAK, DRO DOCKET NO.: 041414
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 20, 1987, the above-named petitioner filed a Petition for
Administrative Review against an order issued March 18, 1987, by a
District Rent Administrator, concerning the housing accommodations
known as 1 University Place, Apartment 16-O, New York, New York,
wherein the Administrator determined that the tenant had not filed a
timely challenge to the fair market rent.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record concerning the
issues raised in the administrative appeal.
The tenant commenced this proceeding by filing an objection to the
January 4, 1985 registration and a fair market rent appeal. The
tenant alleged that she moved into the apartment on December 1,
1982 as the first stabilized tenant according to the rider attached
to her initial lease. She claimed that she never received a DC-2
notice from the owner and that according to information obtained
from the District Rent Office, the June 30, 1974 rent for the
subject apartment was $147.56.
The owner was asked to submit evidence establishing that a DC-2
notice was served on the first stabilized tenant. On March 2, 1987,
the owner submitted a copy of a DC-2 notice naming the complaining
tenant and a copy of a receipt for certified mail dated January 28,
1983. The owner asserted that the tenant's objection should be
On March 18, 1987, the District Rent Administrator issued an order
terminating the proceeding on the ground that the tenant's objection
was untimely since the DC-2 notice was mailed on January 23, 1983
and the objection was not filed until January 10, 1985.
In the petition, the tenant, by her representative, asserts that
the law in effect at the time the complaint was filed is applicable
in determining the merits of the tenant's claim. She argues that
the former Rent Stabilization Law and Code provided that a tenant
must file a Fair Market Rent appeal within ninety days of receipt of
the DC-2 notice. The proof required for "receipt" she asserts
consists of a certified mailing receipt signed by the tenant and in
the instant case it cannot be shown that the tenant actually
received the DC-2 notice as the certified mail receipt was not
Docket Number: BD410040-RT
signed by the tenant. The tenant further argues that DHCR policy
mandates that the owner mail the DC-2 notice to the tenant within 30
days of the date the tenant takes occupancy. The tenant notes that
she moved into the subject premises on December 1, 1982 but was
mailed the DC-2 notice on January 23, 1983 which was more than
thirty days after she took occupancy and was therefore untimely.
The tenant further asserts that she never received the DC-2 notice.
After careful consideration, the Commissioner is of the opinion that
the tenant's petition should be denied.
Section 25 of the former Rent Stabilization Code which was in effect
at the time the subject apartment became decontrolled provided that
a fair market rent appeal had to be filed by a tenant within 90 days
of receipt of the notice of initial legal regulated rent (DC-2, DC-1
or DS-1 notice). Section 26 of the former Code provides that this
notice must be served on the tenant by certified mail.
The owner in the instant case has adequately established that the
DC-2 notice was sent to the tenant by certified mail on January 28,
1983. Accordingly, the owner satisfied the requirements of the
applicable regulations in effect at the time.
Although the tenant correctly notes that the owner was mandated by
Section 26 of the former Code to serve the DC-2 notice on the tenant
within 30 days after the first stabilized tenant taking occupancy,
the tenant was not prejudiced by the owner's failure to adhere to
this time limitation since she still had up to 90 days after receipt
of the DC-2 notice to file a Fair Market Rent Appeal.
The Administrator correctly determined that the tenant's fair market
rent was not timely filed and there is not basis for revoking or
modifying this finding.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, the Emergency Tenant Protection Act of
1974, it is
ORDERED, that this petition be, and the same hereby is, denied and
the Administrator's order be and the same hereby is affirmed.