CF 910224 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.: CF 910224-RO
RIVER ROAD ASSOCIATES, D.R.O. DOCKET NO.:
WY 86-S-95-R
TENANT: Evelyn R. Lynch
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On June 24, 1988 the above-named petitioner filed a Petition for
Administrative Review against an order issued on May 27, 1988 by
the Rent Administrator, 55 Church Street, White Plains, New York,
concerning housing accommodations known as 801 Bronx River Road,
Apartment 3H, Bronxville, New York, wherein the Administrator had
determined that the owner failed to timely file the Operating and
Maintenance Expenses Schedule for the 1985-1986 guidelines period
and was therefore ineligible to collect guideline increases for
that period.
The issue in this appeal is whether the Administrator's order was
warranted.
The Commissioner has reviewed all 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 commenced upon the filing of a rent overcharge
complaint by the tenant (Evelyn R. Lynch) on March 11, 1986. The
tenant therein alleged that the owner had failed to file a
required financial statement and was therefore precluded from
collecting 1985-86 guideline increases. The tenant had entered
into a renewal lease on October 1, 1985.
On March 27, 1986, DHCR sent the owner a copy of the complaint and
afforded the owner an opportunity to answer.
On April 14, 1986, the owner submitted an answer denying the
tenant's allegation and stated therein that the required financial
information had been timely filed. The owner submitted with his
answer a copy of a October 28, 1985 transmittal letter to DHCR
wherein the owner stated that a duplicate of the forms originally
sent in April 1985 has been re-signed and re-dated and were being
re-submitted. The owner did not include a copy of the report with
the answer.
In the order issued May 27, 1988, the Administrator determined
that the owner had failed to timely file the Operating and
Maintenance Expenses Schedule of the 1985-1986 guideline period
and was therefore ineligible to collect a guideline rent increase
for the tenant's October 1, 1985 lease. The owner was ordered to
CF 910224 RO
refund rent in excess of the legal regulated rent as therein
established for this lease and was directed to recompute
subsequent renewal lease rents based upon the regulated rent.
In the petition, the owner reasserts that the required financial
information was timely filed in April 1985. In support, the owner
submits a copy of the above-mentioned October 28, 1985 transmittal
letter along with the complete expenses report and certified mail
receipts indicating mailing on October 30, 1985 and receipt by the
Division on November 1, 1985. The Schedule is dated April 3, 1985
and redated October 28, 1985.
By subsequent correspondence, the owner submitted an affidavit
attesting to the filing of the required Schedule in April 1985.
The Commissioner is of the opinion that this petition should be
granted.
By resolution of the Westchester County Rent Guidelines Board, any
owner who failed to file a 1985-1986 Property Maintenance and
Operations Cost Survey Schedule on or before a prescribed date
following receipt of written notice to do so was ineligible for
guidelines rent increases for the period October 1, 1985 -
September 30, 1986. Notice was sent to owners in March 1985
advising owners to file the Schedule within 45 days of receipt or
by May 15, 1985, whichever date was later.
Section 110 (9NYCRR Section 2508.1) of the Tenant Protection
Regulations provides, in pertinent part, as follows: Notices,
orders, protests, answers and other papers may be served
personally or by mail. When service is made personally or by
mail, an affidavit by the person making the service or mailing
shall constitute sufficient proof of service. When service is by
registered or certified mail, the return post office receipt shall
constitute sufficient proof of service.
In the instant case, the owner has submitted an affidavit
attesting to the timely filing of the Operating and Maintenance
Expenses Schedule in April 1985. It is noted that the filing year
in question predated the requirement that owners mail the
Schedule to the Division by certified mail. It is further noted
that there were various moves of Division offices and personnel
responsible for receiving these statements during the period when
they should have been received by the Division. In addition,
there were an unusual number of asserted non-receipts by the
Division followed up by credible claims of proper mailing by
CF 910224 RO
owners during this period. Based on the evidence of record and
the particular circumstances affecting the filings during the
guideline year in question, the Commissioner finds that the owner
timely filed the Operating and Maintenance Expenses Schedule for
1985-86 and that the owner was therefore eligible to collect the
guideline increase for the leases commencing between October 1,
1985 and September 30, 1986. Accordingly, the tenant's overcharge
complaint is denied.
Any arrears owed by the tenant as a result of this order may be
repaid to the owner in equal monthly installments over the course
of the next 24 months.
THEREFORE, in accordance with the Tenant Protection Regulations
and the Emergency Tenant Protection Act, it is
ORDERED, that this petition be and the same hereby is granted,
the Rent Administrator's order be and the same hereby is revoked
and the tenant's overcharge complaint be and the same hereby is
denied.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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