Docket Number: BH410368-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
------------------------------------X
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BH 410368-RO
:
241 REALTY ASSOCIATES, DRO DOCKET NO.: U 3124291-RT
PETITIONER :
------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
IN PART AND REMANDING PROCEEDING TO THE DISTRICT RENT ADMINISTRATOR
On August 21, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on April
1, 1987, by the District Rent Administrator, 10 Columbus Circle, New
York, New York, concerning housing accommodations known as Apartment
No. 44 at 241 West 110 Street, New York, New York, wherein the
District Rent Administrator determined that the tenant had been
overcharged.
The record in this case indicates that the copy of the
Administrator's order which was sent to the owner was sent to an
incorrect address and was returned to the DHCR by the post office
because of an insufficient address. The owner states that it first
received a copy of the Administrator's order on July 29, 1987 from
the tenant's attorney during the course of a court proceeding. The
Commissioner therefore finds that the owner's petition will be
accepted as timely filed.
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 Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issue raised by the administrative appeal.
This proceeding was originally commenced on March 14, 1984 by the
filing of a fair market rent appeal and a rent overcharge complaint
by the tenant with the New York City Conciliation and Appeals Board
(CAB), one of the predecessor agencies to the DHCR. The tenant took
Docket Number: BH410368-RO
occupancy pursuant to a lease commencing April 1, 1982 and expiring
May 31, 1985 at a monthly rent of $310.00. The tenant stated in his
application that he had not received a notice of initial legal
regulated rent (DC-2 notice) from the owner.
The following notices were sent to the owner during the course of
the processing of this case:
1) Notice dated March 23, 1984 from the CAB
advising the owner that an overcharge complaint had
been filed by the tenant, that, after docketing of
the complaint, the owner would be mailed a copy of the
complaint and afforded an opportunity to respond
thereto and that rent records from the base date
would be required.
2) Notice dated January 18, 1985 advising the
owner that the tenant had filed a fair market rent
appeal application and requesting proof of service
of a DC-2 notice or apartment registration form.
3) Notice dated August 19, 1985 consisting of
an owner's fair market rent appeal package. This
notice was returned to the DHCR marked "moved-not
forwardable."
4) Notice dated August 27, 1986 advising the
owner that the tenant had filed both a fair market
rent appeal application and an overcharge complaint,
requesting proof of service of a DC-2 notice, and
advising the owner that if it failed to submit such
notice and proof of service the DHCR would continue
to process the tenant's fair market rent appeal.
5) Final Notice of Pending Default dated
November 5, 1986 advising the owner that rent records
from the base date, as well as documentation of the
base date if after September 1, 1984, were required;
for the tenant's overcharge complaint. The notice
afforded the owner a final opportunity to comply and
advised the owner that failure to submit the required
records would result in the application of the default
procedure. This notice was returned to the DHCR marked
"moved-left no address."
In the order under appeal herein, the District Rent Administrator
determined the lawful stabilized rent using the default procedure
based on the owner's failure to submit the required rent records,
determined that the tenant had been overcharged in the amount of
$16,391.13, including treble damages on the overcharges collected
after April 1, 1984, and directed the owner to refund said amount
to the tenant as well as to reduce the rent.
Docket Number: BH410368-RO
In this petition, the owner contends that the only notice it
received regarding this matter was the January 18, 1985 notice which
indicated solely that the tenant had filed a fair market rent
appeal; that the owner never received a request for prior leases as
stated by the Administrator in his order; that the owner was not in
default but filed an answer to the January 18, 1985 notice on
February 11, 1985; that the owner was never informed that the
tenant's fair market rent appeal had been converted to an overcharge
complaint; that the Administrator had no basis for converting the
complaint or presuming that the owner was aware of the conversion;
that had the owner been notified that the tenant had filed an
overcharge complaint and that it was required to submit copies of
prior leases, it would have complied; and that the tenant was not
overcharged and the tenant's complaint should be dismissed. The
owner submits with its petition a copy of its February 11, 1985
answer and a signed certified mail receipt. This answer listed the
owner's new address and indicated that the January 18, 1985 notice
had been sent to the owner's old address. The owner enclosed with
the answer a copy of the 1984 apartment registration form and a
certificate of mailing from the Rent Stabilization Association
indicating mailing on June 29, 1984. In its answer the owner also
requested to be advised if any other data was required and indicated
that the tenant's challenge was improper because the tenant failed
to allege that the rent was in excess of the fair market rent. The
owner also submits with its petition a copy of a Landlord's Report
of Statutory Decontrol indicating that the subject apartment was
vacated on May 1, 1981 and rented on June 6, 1981 and a copy of the
prior tenant's lease commencing June 1, 1981 and expiring June 5.
1984 at a monthly rent of $275.00.
The Commissioner is of the opinion that this petition should be
granted in part.
The record in this case indicates that the owner submitted an answer
to the January 18, 1985 notice which was not received by the
Administrator in which the owner advised the Administrator of its
new address. The record further indicates that all notices to the
owner in this case were mailed to the owner's old address. The
Final Notice of Pending Default dated November 5, 1986, which was
the only notice to the owner which specifically requested rent
records from the base date, was returned to the DHCR mark d "moved-
left no address." The Commissioner therefore finds that the
application of the default procedure was inappropriate and the
rental history documentation submitted by the owner with its
petition as well as the owner's February 11, 1985 answer, should be
considered at this time.
Section 25 of the Code provides that a fair market rent appeal
application may be filed by the tenant of an apartment which was
subject to rent stabilization or rent control prior to July 1, 1971
and was vacated between January 1, 1974 and June 30, 1974, both
dates inclusive, or of an apartment which was subject to rent
control on June 30, 1974 and vacated thereafter.
Docket Number: BH410368-RO
Section 25 of the Code further 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.
The rental documentation submitted by the owner, which includes a
Landlord's Report of Vacancy Decontrol which is corroborated by the
DHCR's rent control records, indicates that a prior tenant who took
occupancy on June 1, 1981 was the first rent stabilized tenant to
occupy the subject apartment after vacancy decontrol and that the
applicant was the next tenant to occupy the apartment thereafter.
The Commissioner finds that the tenant's fair rent market appeal
application is not materially defective because of the tenant's
failure to allege that the initial rent exceeded the fair market
rent for the subject apartment. Such allegation is implicit in the
filing of a fair market rent appeal.
The tenant is his application stated that he did not receive a DC-2
notice from the owner and the owner has not alleged service of a
DC-2 notice on the tenant or the prior tenant. It is noted that the
apartment registration form was served on the tenant after he filed
his fair market rent appeal application. The Commissioner therefore
finds that the proceeding should be remanded to the Administrator
for processing of the tenant's fair market rent appeal. The fair
market rent appeal package which was sent to the owner by the
Administrator was returned to the DHCR by the post office. On
remand, the Administrator should reserve the owner with a fair
market rent appeal package at the owner's current address.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be and the same hereby is granted and
the proceeding be and the same hereby is remanded to the District
Rent Administrator for further processing in accordance with this
order and opinion. The automatic stay of so much of the District
Rent Administrator's order as directed a refund is hereby continued
until a new order is issued upon remand. However, the
Administrator's determination as to the rent is not stayed and shall
remain in effect, except for any adjustments pursuant to lease
renewals, until the Administrator issues a new Order upon remand.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
|
