CH410023RT

                                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.: CH410023RT

           Amy L. Mall,                      DRO DOCKET NO.: ZAA401245R

                                             OWNER: Britton Realty Co.        
                             PETITIONER             Dupont Associates
      ------------------------------------X                             


           ORDER AND OPINION REMANDING PROCEEDING TO THE DISTRICT RENT 
                                  ADMINISTRATOR


      On August 9, 1988, the above-named petitioner-tenant filed a Petition 
      for Administrative Review against an order issued on July 29, 1988, by 
      the District Rent Administrator, 92-31 Union Hall Street, Jamaica,      
      New York, concerning the housing accommodations known as 124 East 24th 
      Street, New York, New York, Apartment No. 6G, wherein the District Rent 
      Administrator dismissed the tenant's fair market rent appeal (hereafter 
      FMRA) as untimely.

      The Administrative Appeal is being determined pursuant to the provisions 
      of Section 26-513 of the Rent Stabilization Law.

      The issue herein is whether the Rent Administrator's order was 
      warranted.

      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.  

      The record indicates that on December 27, 1985 the tenant herein filed 
      a complaint of rent overcharge in which she stated that the initial 
      legal regulated rent exceeded the fair market rent.  The tenant took 
      occupancy pursuant to a lease commencing September 1, 1985 and expiring 
      August 31, 1986 at a monthly rent of $800.00.

      In response the owner submitted a copy of a DC-2 notice and certified 
      proof of service (USPS form 3800 + signed receipt) dated September 9, 
      1985 and September 18, 1985 respectively.  It is unclear whether the 
      submission was served on the tenant (a photocopy of a forwarding notice 
      dated December 3, 1987 in the area file does not indicate what 
      submissions by the owner were served on the tenant) and whether the 
      tenant was afforded an opportunity to contest the owner's submissions 
      below.



      On July 29, 1988, an order was issued dismissing the tenant's FMRA based 
      on the fact that the complaint filed by the tenant on December 27, 1985 







          CH410023RT

      exceeded the 90 day period for filing a FMRA commencing September 9, 
      1985.

      On appeal, the tenant indicates that no DC-2 notice was ever served on 
      her and that the certified proof submitted by the owner was for a 
      mailing which contained only her vacancy lease and Rent Stabilization 
      rider.

      During the processing of the appeal an administrative hearing was held 
      on November 30, 1992 wherein both the tenant and current owner appeared 
      and were afforded opportunities to present evidence in support of their 
      contentions.  The Administrative Law Judge concluded that the owner 
      failed to sustain its burden of proof as to the proper service of the 
      DC-2 notice on the tenant and therefore, recommended processing the 
      tenant's FMRA on the merits.

      The tenant vacated the subject apartment on May 14, 1989 but has 
      forwarded current addresses to the DHCR.

      The Commissioner is of the opinion that this proceeding should be 
      remanded so that the tenant's complaint can be processed as a fair 
      market rent adjustment application on the merits in accordance with the 
      findings of the Administrative Law Judge.  The owner should be afforded 
      an opportunity to submit comparability data in accordance with the 
      current Rent Stabilization Code and the tenant should be afforded an 
      opportunity to comment on any submission made by the owner.

      THEREFORE, in accordance with the Rent Stabilization Law and Code, it is

      ORDERED, that this petition be, and the same hereby is, granted, to the 
      extent of remanding this proceeding to the District Rent Administrator 
      for further processing in accordance with this order and opinion.

      A copy of this order is being served on the current occupant of the 
      subject apartment.


      ISSUED:



                                                                  
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner
    

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