ADM. REVIEW DOCKET NOS.: BA810106RO, ET AL.
                                  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


          ------------------------------------X
          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NOS.: BA810106RO,
                                                  BA810301RO, BA810112RT
           ABC PROPERTIES,                        
                          PETITIONER-OWNER        DISTRICT RENT OFFICE
                                                  DOCKET NO.: WLAR-86-S-6-R
           RICHARD AND ROSALEEN MARI,              
                          PETITIONER-TENANTS
                                   
          ------------------------------------X

                  ORDER AND OPINION DENYING TWO OWNER PETITIONS FOR
                    FOR ADMINISTRATIVE REVIEW AND DISMISSING ONE
                      TENANT PETITION FOR ADMINISTRATIVE REVIEW

               These petitions have been consolidated as they involve common  
          issues of law and fact.

               The above named petitioner-owner timely filed a Petition for 
          Administrative Review against an order issued on December 16, 1986 
          by the Rent Administrator, 55 Church Street, White Plains, New 
          York, concerning housing accommodations known as Apartment 324-D, 
          Larchmont Acres West, Larchmont, New York, wherein the Rent 
          Administrator determined that the tenants herein had been 
          overcharged.  The petition received the first two docket numbers 
          captioned above.  On January 23, 1987 the above named tenant- 
          petitioners field a Petition against the same order, receiving 
          docket number BA810112RT.

               The issue in this appeal is whether the Administrator properly 
          disallowed rent increases taken by the owner on leases commencing 
          on or after October 1, 1985 but before September 30, 1986 because 
          the owner had failed to file certain required data to the 
          Westchester County Rent Guidelines Board by May 15, 1985.

               The applicable sections of the Emergency Tenant Protection Act 
          (ETPA) are Sections 4 and 12 (8624 and 8632 in McKinney's 
          Unconsolidated Laws [Book 65]).

               The Commissioner has reviewed all of the evidence in the 
          record and has carefully considered that portion of the record 
          relevant to the issues raised by these administrative appeals.















          ADM. REVIEW DOCKET NOS.: BA810106RO, ET AL.

               In the Order herein under review, the Rent Administrator 
          determined that because the owner had filed the Maintenance and 
          Operating (M & O) Cost Survey after its May 15, 1985 due date, the 
          owner was ineligible to impose Rent Guidelines increases on leases 
          commencing during the 1985-1986 Rent Guidelines period.

               In its petitions, the owner contends that the Rent 
          Administrator's Order is incorrect and should be modified because 
          the Board had no power to impose such a penalty for late filing and 
          secondly, even if the Board had such power, the penalty should not 
          be applied herein since the required Maintenance and Operating 
          schedule was submitted less than two weeks late.  More 
          specifically, the owner argues that under ETPA the Board is 
          empowered to collect data and adopt guidelines for rent increases- 
          but has no authority to impose penalties.  Therefore, the 
          Guidelines Order for the period in question "insofar as it purports 
          to bar an owner from collecting rent guidelines increases for an 
          entire year upon the late filing of an M & O Schedule is an 
          unlawful exercise of authority by the County Rent Guidelines 
          Board."  (Emphasis in original.)

               In addition, the owner contends that the penalty imposed by 
          the Board "is inconsistent with the spirit and intent of the ETPA 
          and the regulations promulgated thereunder."  The owner supports 
          this contention by noting that under the Tenant Protection 
          Regulations (TPR) a failure to timely file a Certificate of 
          Services or an annual registration statement only results in an 
          owner being precluded from collecting rent increases until the 
          owner subsequently files the required documentation, at which point 
          the owner can collect the rent increases prospectively.  Therefore, 
          the Board's penalty herein also should not penalize an owner beyond 
          the date of actual filing.

               Accordingly, the owner contends the Administrator "erred by 
          imposing a rent overcharge penalty based upon an unlawful and 
          unenforceable resolution of the County Rent Guidelines Board."

               Furthermore, the owner argues that neither the Board nor the 
          tenants have even asserted that they were prejudiced by the late 
          filing, whereas the prejudice to the owner is "severe," especially 
          since the lateness was not willful.  The delay is alleged to have 
          been caused by "an office oversight" whereby the March 1985 letter 
          from the Board "did not come to the attention of...the owner's 
          managing partner until after the May 15th deadline, and as soon as 
          he became aware of it the Schedule was completed and filed by hand- 
          delivery."  The owner's "good faith" is also said to be 
          demonstrated by the fact that all prior M & O schedules had been 
          filed on time.
               

               In answer to these petitions the tenants argue that the 
          Administrator's Orders were correct and should be upheld.






          ADM. REVIEW DOCKET NOS.: BA810106RO, ET AL.


               On the merits, the tenants state the Board "does have the 
          express authority to adopt guidelines which bar the landlord from 
          collecting any increase for the period in question for failure to 
          timely file the Maintenance & Operating Expense Schedule."

               The tenants contend that the M & O Schedule "is required on a 
          timely basis so that it may be analyzed by the Rent Guidelines 
          Board.  And if by two days or by two weeks the landlord failed to 
          meet the deadline as required, he is in violation because the 
          financial data is not available to be included in the data used by 
          the Guidelines Board to determine increases."

               The tenants further contend that the owner "made no attempt to 
          be excused for this failure.  The landlord had several 
          opportunities to appear before the...Board to offer any and all 
          relevant facts and request that the...Board remove the landlord 
          from the [list of owners ineligible to take Guidelines increases 
          during the period in question]."

               The Commissioner is of the opinion that the owner's petitions 
          should be denied and that the tenants' petition should be 
          dismissed.

               At the outset, the Commissioner notes that the tenants' 
          petition was signed, notarized and postmarked on the 36th day after 
          the issuance of the Administrator's order, and was received by the 
          Division on the 38th day.  Accordingly, their petition was untimely 
          under the applicable Regulations which provide that a Petition for 
          Administrative Review (PAR) must be filed within 35 days after the 
          date of issuance of the Administrator's order being appealed.

               There is no provision under the applicable Regulations 
          permitting an extension of time for the filing of a PAR.

               The Commissioner finds that the tenant-petitioners have failed 
          to comply with the requirements set forth above and that their PAR 
          must therefore be dismissed. 

               The Division is required to administer ETPA and, in 
          particular, to find an overcharge whenever an owner collects rent 
          in excess of the rent authorized under ETPA.  For a rent to be 
          authorized, it must conform with the applicable Guidelines Board 
          Order.  The Board Order in effect during the period in question in 
          this proceeding states, in part:

               

                    "The Board has determined that it will authorize no
                    rental adjustment for the class of housing
                    accommodations for which the owners have failed to
                    submit or timely submit required data to the Board












          ADM. REVIEW DOCKET NOS.: BA810106RO, ET AL.

                    and have failed to provide a legally acceptable 
                    reason to be determined pursuant to the Board's
                    directive and resolutions and as implemented by 
                    written notices to said owners sent by certified 
                    mail."

               Therefore, the Administrator was constrained, as is the 
          Commissioner, to find that the owner herein was not eligible to 
          impose a Guidelines rent increase during the period in question.
          The Board is a quasi-legislative body and its rulings are not 
          subject to review by the Division.  Accordingly, the owner can not 
          collaterally attack the Board's Order in a proceeding before the 
          Division.  This Order is without prejudice to the owner's right to 
          challenge the Board's Order in a court of competent jurisdiction.

               It is undisputed that the owner did not timely file the M & O 
          Schedule by May 15, 1985.  Division records show that the Schedule 
          was received by the owner on March 13, 1985, two months before the 
          deadline.  It was properly addressed and the return receipt was 
          signed.  Prior to the issuance of the Administrator's Order, a DHCR 
          staff person confirmed that the person who signed the receipt was 
          an employee of the owner.  The owner does not dispute that the 
          receipt was signed by an employee of the owner.  Instead, the owner 
          contends in its Petition that "[t]hrough an office oversight, the 
          matter did not come to the managing partner's attention at ABC 
          Properties until after the May 15th filing deadline."  If such an 
          excuse were deemed acceptable the deadline would have no meaning at 
          all.

               ETPA Section 4 mandates the establishment of a Rent Guidelines 
          Board in each of the three ETPA countries and provides that each 
          Board 

                    "shall establish guidelines for rent adjustments
                    which, at its sole discretion may be varied and
                    different for and within the several zones and
                    jurisdictions of the board, and in determining 
                    whether rents for housing accommodations as to 
                    which an emergency has been declared pursuant to
                    this act shall be adjusted, shall consider among
                    other things (1) the economic condition of the 
                    residential real estate industry in the affected
                    area including such factors as the prevailing and
                    


                    projected (i) real estate taxes and sewer and water
                    rates, (ii) gross operating maintenance costs
                    (including insurance rates, governmental fees, 
                    cost of fuel and labor costs), (iii) costs and
                    availability of financing (including effective 
                    rates of interest), (iv) overall supply of housing






          ADM. REVIEW DOCKET NOS.: BA810106RO, ET AL.

                    accommodations and over-all vacancy rates, (2) 
                    relevant data from the current and projected cost of
                    living indices for the affected area, (3) such other
                    data as may be made available to it.  As soon as 
                    practicable after its creation and thereafter not later  
                    than July first of each year, a rent guidelines board 
                    shall file with the state division of housing and
                    community renewal its findings for the preceding
                    calendar year, and shall accompany such findings with
                    a statement of the maximum rate or rates of rent
                    adjustment, if any, for one or more classes of 
                    accommodation subject to this act, authorized for 
                    leases or other rental agreements commencing during
                    the next succeeding twelve months.  The standards for
                    rent adjustments may be applicable for the entire 
                    county or may be varied according to such zones or
                    jurisdictions within such county as the board finds 
                    necessary to achieve the purposes of this subdivision."
                    (Emphasis added.)

               As stated above, the Division does not have the power to 
          review the Board's Orders.  Nevertheless, the Commissioner notes 
          that the Board has the power to establish different rent increase 
          rates, or no rates at all, for different classes of housing.  
          Furthermore, the Board must base its decision in part on "gross 
          operating maintenance costs" and the Board itself has a July 1st 
          deadline to promulgate both its findings and the maximum rent 
          increases for the following cycle (in part based on the M & O 
          Schedules).

               It is clear that to meet its own deadline the Board must 
          consider the M & O Schedules, if at all, within the month and half 
          period before the July 1 due date for its Order.  While most 
          deadlines are to some extent arbitrary, clearly some deadline is 
          required in order for the Schedules to be considered.  Surely, the 
          owner's suggestion that owners be allowed to collect Guidelines 
          increases upon filing of the Schedules has no merit.  The rent 
          increases can occur no earlier than October 1st, whereas the 
          Schedules are due the preceding May 15th.  Under the owner's 
          suggestion there would be no incentive at all to timely file.




               THEREFORE, in accordance with the Emergency Tenant Protection 
          Act and Regulations, it is 

               ORDERED, that two owner petitions be, and the same hereby are, 
          denied, and the Rent Administrator's order be, and the same hereby 
          is, affirmed.  It is further

               ORDERED, that the tenants' petition be, and the same hereby 












          ADM. REVIEW DOCKET NOS.: BA810106RO, ET AL.

          is, dismissed.

          ISSUED:





                                                                      
                                             LULA M. ANDERSON
                                             Deputy Commissioner
    

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