BJ 430179 RO
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.: BJ 430179-RO
ICC REALTY CORP., D.R.O. DOCKET NO.: TA 11830
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND AMENDING ADMINISTRATOR'S ORDER
On October 30, 1989, the above-named petitioner-owner filed a
Petition for Administrative Review (PAR) against an order issued
on September 25, 1987 by the then Rent Administrator of 10
Columbus Circle, New York City District Rent Office, concerning
the subject accommodations known as 244 West 72nd Street, New
York, New York, Apartment 8D, wherein the Administrator determined
the tenant's Fair Market Rent appeal.
In the September 25, 1987 order the Administrator found that the
owner had failed to substantiate service of the Initial Regulated
Rent Notice (DC-2) on the tenant or that the tenant had consented
in writing to the installation of the new stove, established the
legal regulated rent at $350.22, effective the date of the
commencement of the initial lease by averaging the results of the
Special Guidelines test with the result of the comparability
study, and directed the owner to roll back the rent and to refund
or credit any excess rent paid by the tenant.
The tenant took possession of the subject accommodations on August
1, 1981 at a monthly rent of $500.00 as the first rent-stabilized
tenant.
The tenant claimed that she was not served with a copy of the
Initial Regulated Rent Notice (DC-2), and stated that she believed
that the initial rent charged exceeded the Fair Market Rent for
the apartment.
The owner responded that a DC-2 notice was served on the tenant.
In support the owner submitted an affidavit from the prior
managing agent attesting that it was the owner's practice at the
time to serve every first stabilized tenant with a DC-2 notice by
certified mail or by personal delivery. However, the owner failed
to substantiate service by any independent evidence. The owner
did not produce a copy of the DC-2 notice allegedly served, nor a
copy of a certified mail receipt. Copies of the tenant's initial
lease, and Landlord's Report of Statutory Decontrol (R-42 Notice),
among other contemporaneous documents, were submitted however.
Additionally, the affiant stated that he "did not specifically
remember the events surrounding the leasing of the apartment to
Ms. [tenant's surname], who was the first stabilized tenant."
BJ 430179 RO
The owner also claimed that the tenant had agreed to pay an
additional $6.00 per month for the installation of a new stove,
but was unable to submit proof of the tenant's written consent
for such installation. The tenant did not deny the claim, raised
for the first time in the owner's response.
The owner's argument on appeal is, in essence, that the tenant's
failure to controvert or challenge the owners "evidence" by
affidavit established that the DC-2 notice was served, or that at
the very least, shifted to the tenant the burden of proving that
she had not received the DC-2 notice. The petitioner also
requests that if the fair market rent appeal is not dismissed at
PAR, a hearing be held as to the issue of service of the DC-2
notice.
After careful consideration the Commissioner is of the opinion
that the petition should be denied.
Section 26(A) of the former Rent Stabilization Code provided, in
pertinent part, that a tenant is entitled to apply for an
adjustment of the initial regulated rent and to receive notice of
such rent, together with a statement as to the right of the
appeal, and that the notice be served by the owner by certified
mail. Section 2523.1 of the current Rent Stabilization Code
contains similar provisions.
The owner's affidavit by the prior managing agent attesting that
it was the owner's practice to serve every first stabilized tenant
with a DC-2 notice did not establish service of such notice.
One Court had sustained DHCR's position that an affidavit of
service does not constitute adequate proof of mailing. In JRD
Management v Eimicke, 148 AD2d 718, 539 NYS 2d 669 (A.D. 2d Dept,
1989), the Court held that a "DHCR determination that an affidavit
of service does not constitute other adequate proof of mailing is
neither arbitrary nor capricious." JRD Management established
that an affidavit of service was inadequate to constitute adequate
proof of timely mailing of a Petition for Administrative Review.
Herein, an affidavit from a former agent or employee, submitted
without relevant supporting documentation, prepared several years
after the matters described herein rather than contemporaneously,
prepared for the purpose of an administrative proceedings, and
possibly in contemplation of judicial proceedings, and setting
forth that the affiant did not remember the event surrounding the
BJ 430179 RO
leasing, is scant evidence to establish service of notice by
normal office procedure, and thoroughly inadequate to constitute
independent proof of service.
The Commissioner similarly rejects the petitioner's argument that
the tenant's failure to contest or challenge the "evidence"
established that a DC-2 notice was served. The owner's response
merely joined issue, with the tenant's complaint that she was not
served the DC-2 notice, the sufficient to permit the issues to be
considered.
Nor was the affidavit insufficient to shift the burden of proof to
the tenant. The attestation that the owner's then normal
procedures alternatively provided service of, the DC-2 Notice by
personal delivery by the owners employees, rather than by
certified mail, constitutes compelling evidence that the owner
may have failed to comply with Code provisions requiring service
by certified mail without establishing service of the DC-2 notice
by ad hoc alternate means not provided in the regulations.
In light of the owner's failure to establish service of the DC-2
notice by certified mail in this instance, or to come forward with
a signed copy of the alleged notice, or to explain why the signed
DC-2 notice or the certified mail receipt could not be produced
while other contemporaneous documents were presented, the tenant
had no obligation to come forward to establish that she had not
received a DC-2 notice.
With the PAR, the owner has submitted a copy of a signed, albeit
undated, written statement of tenants consent to $6.00 rent
increase for a new stove, contained on a form entitled "Landlords'
Application for Increase in Maximum Rent. As the issue was raised
below, documented by independent evidence on appeal, and not
challenged by the tenant, the Commissioner is of the opinion that
the rent adjustment was proper. The Administrator's order is
amended to the extent of permitting the owner a $6.00 rent
adjustment for the installation of a new stove. The legal
regulated rents have been recomputed per the attached chart which
is fully made a part of this order. In all other respects the
Administrator's order is affirmed.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is granted in
part, and the Administrator's determination be modified as
provided above.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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