DOCKET NO.:  CI220122RO
                              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   :  
     APPEAL OF                                 ADMINISTRATIVE REVIEW
                                           :   DOCKET NO. CI220122RO
                   CHOON MA,                   DISTRICT RENT ADMINISTRATOR'S
                                           :   DOCKET NO. BA220110R
                            PETITIONER         TENANT:  GEORGE ROSSETTI
     --------------------------------------X            


           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


     On September 22, 1988, the above-named landlord filed a petition for 
     administrative review of an order issued on August 18, 1988 by a Rent 
     Administrator concerning the housing accommodations known as the second 
     floor front apartment, 1656 74th Street, Brooklyn, New York

     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 the petition for administrative review.

     This proceeding was commenced by the subject tenant filing a rent 
     overcharge complaint, dated January 9, 1987.

     The subject tenant first took occupancy on February 1, 1963, at a monthly 
     rent of $100.00.

     The subject landlord's answer, dated February 8, 1988, alleged that the 
     subject apartment is not subject to stabilization as the subject building 
     contains four housing units, and that the overcharge complaint was 
     defective as the subject tenant did not set forth a statement of complaint 
     under Part III of the overcharge complaint.

     On April 14, 1988 the rent agency mailed to the parties a notice stating 
     that:

               Evidence indicates tenant took occupancy of subject 
               unit on February 1, 1963.  There is no registration in 
               file for subject unit.  Furthermore, it appears subject 
               building is not in the Maximum Base Rent system.  We 
               are proposing to find that this unit is subject to the 
               Rent and Eviction Regulations.  Landlord and tenant are 
               requested to submit a rental history for subject unit 
               for the date of occupancy to the present.  Further 
               please advise if subject building was built prior to 
               February 1, 1947 and if there has been any renovation 
               in subject building.
     The notice gave the parties twenty days from the above-mentioned date to 
     submit the requested information.  






          DOCKET NO.:  CI220122RO


     On May 9, 1988 the subject tenant submitted to the rent agency a letter 
     from "Con Edison," dated April 28, 1988, which noted that the subject 
     tenant has been the "customer on record" at the subject apartment "since 
     January 31, 1963."  The subject tenant also submitted a letter from "New 
     York Telephone," dated April 25, 1988, which noted that the subject tenant" 
     has had telephone service with New York Telephone Company since April 24, 
     1969" at the subject apartment.

     The subject landlord's response, dated May 2, 1988, alleged, among other 
     things, that the subject building was built in 1924.  

     On June 21, 1988 the rent agency mailed to the parties a "Notice of 
     Commencement of Proceeding to Determine Facts or Fix Maximum or Legal 
     Regulated Rent," pursuant to Section 36 of the former regulations.  The 
     notice proposed to establish the maximum collectible rent (MCR) at $100.00 
     per month, effective February 1, 1963, and $115.00 per month effective 
     August 1, 1970, and stated that:  "Evidence indicates George Rossetti has 
     occupied subject unit since February 1, 1963 continuously.  It is proposed 
     that subject unit is under the jurisdiction of the Rent and Eviction 
     Regulations."  

     The notice afforded the parties to this proceeding an opportunity to file 
     an answer to the proposed action set forth in the notice within twenty days 
     of the aforementioned date of mailing.

     In the order under review herein, the Administrator determined that the 
     subject apartment is subject to rent control; that the MCR effective on 
     February 1, 1963 was $100.00 per month, and the MCR effective August 1, 
     1970 was $115.00 per month, pursuant to Section 2202.22 of the City Rent 
     and Eviction Regulations, and that the subject landlord was directed to 
     refund to the subject tenant, "all rent collected in excess of the maximum 
     rent fixed or established by this order during the period beginning no 
     earlier than two years prior to January 12, 1987...with 6% interest from 
     the date of each successive payment of rent.

     The subject landlord's petition reiterates its allegations which were 
     previously submitted to the rent agency during the proceeding before the 
     Administrator.  The landlord's petition also asserts, among other things, 
     that it was "arbitrary and capricious" that the rent agency did not dismiss 
     the tenant's complaint for being "patently defective"; that the Section 36 
     proceeding should not have been commenced as the tenant's complaint was 
     allegedly defective; that the subject landlord did not respond timely to 
     the rent agency's notice of commencement of proceeding to determine facts 
     or fix maximum rents due to a change in the subject landlord's attorneys; 
     that on August 11, 1988 the landlord's new attorneys filed with the rent 
     agency a request for an extension of time to respond to the above-mentioned 
     notice; that the Administrator's order "did not address petitioner's 
     request for an extension of time to answer"; that the Administrator's order 
     "was rendered without regard to petitioner's due process of law"; that the 
     complainant is not subject to rent control; that the subject landlord has 
     filed requests to review the record in this proceeding, but "has not been 
     granted an opportunity by DHCR to review the evidence," and that a "Request 
     is made to delay adjudication of the within petition until such time as 
     petitioner is afforded an opportunity to review the file and records kept 
     by DHCR and a chance to file an amended PAR."

     To the petition the landlord attaches, among other things, a copy of the 


          DOCKET NO.:  CI220122RO

     landlord's letter, dated August 8, 1988, requesting an extension of time to 
     respond to the rent agency's "Notice of Commencement of Proceeding to 
     Determine the Facts or Fix Maximum or Legal Regulated Rent."  The landlord 
     also attaches to the petition a copy of a request form, filed with rent 
     agency on September 6, 1988, to inspect the record in this proceeding.

     After careful consideration, the Commissioner is of the opinion that the 
     landlord's petition should be denied.

     As the record reflects that the subject building, which is a four-family 
     house, was completed prior to February 1, 1947, and that the subject tenant 
     has continuously resided in the subject apartment prior to June 30, 1971, 
     the Commissioner finds, pursuant to the applicable rent regulations, that 
     the subject landlord's assertion that the subject tenant is not a rent- 
     controlled tenant is without merit.

     The Commissioner further finds that the subject landlord does not allege 
     any grounds that would warrant decontrol of the subject apartment.

     The Commissioner notes that the failure of a landlord from registering a 
     rent controlled apartment with the rent agency does not exempt that 
     apartment from the applicable rent regulations.

     As to the subject landlord's assertion that the subject tenant's complaint 
     was defective as Part III of the aforementioned complaint was not 
     completed, the Commissioner notes that the aforementioned Part III of the 
     subject tenant's complaint pertains to overcharges in rent-stabilized 
     apartments.

     As the subject tenant's apartment is rent-controlled, the Commissioner 
     finds that the aforementioned Part III of the tenant's complaint is not 
     applicable to this proceeding, and that the subject tenant's complaint is 
     not defective.

     Even if Part III of the subject tenant's complaint were applicable to this 
     proceeding, the commissioner is of the opinion that the tenant's complaint 
     still would not have been considered defective as the filing of the subject 
     tenant's overcharge complaint gave the subject landlord sufficient notice 
     as to the nature of the subject tenant's cause of action.

     As the maximum rent of the subject apartment was in dispute by the parties 
     in this proceeding, the Commissioner finds that it was proper for the 
     Administrator to commence a proceeding to determine the apartment's maximum 
     rent, pursuant to Section 2202.22 of the City Rent and Eviction 
     Regulations.

     The Commissioner notes that the above-mentioned proceeding was commenced by 
     the Administrator mailing to the parties a "Notice of Commencement of 
     Proceeding to Determine Facts or Fix Maximum or Legal Regulated Rent" on 
     June 21, 1988, and that the parties were afforded an opportunity to file an 
     answer to the above-mentioned notice within twenty days from the above- 
     mentioned date of mailing.

     The Commissioner notes that the subject landlord first responded to the 
     above-mentioned notice on August 8, 1988 by mailing to the Administrator a 
     request for an extension of time to respond to the above-mentioned notice.

     The record reflects that the landlord's request for an extension of time to 






          DOCKET NO.:  CI220122RO

     respond to the rent agency's notice was not in the record before the 
     Administrator at the time the order under review herein was issued, due to 
     the proximity of time between the issuance of the Administrator's order and 
     the landlord's request for an extension of time.

     As the subject landlord did not respond to the rent agency's notice within 
     the required twenty day time period, the Commissioner finds that the 
     subject landlord is deemed to be in default in the proceeding commenced 
     pursuant to Section 2202.22 of the City Rent and Eviction Regulations, and 
     that the Commissioner further finds that it was proper for the 
     Administrator to have issued its order based solely on the existing record.

     The Commissioner notes that the subject landlord's request to review the 
     record in this proceeding was filed with the rent agency on September 6, 
     1988, which was after the issuance date of the Administrator's order.

     Accordingly, the Commissioner finds that the subject landlord was not 
     denied due process in the proceeding before the Administrator.

     For all of the aforementioned reasons, the Commissioner finds that the 
     subject landlord's petition should be denied.

     THEREFORE, in accordance with the City Rent and Rehabilitation Law and the 
     Rent and Eviction Regulations, it is 

     ORDERED, that this petition be, and the same hereby is, denied, and that 
     the Administrator's order be, and the same hereby is affirmed, and it is 

     FURTHER ORDERED, that the maximum rent of the subject apartment, effective 
     August 1, 1970, is $115.00 per month.

     Note:  The Administrator's order directed the landlords to refund all rents 
     collected by them in excess of the maximum rent established by this order 
     with interest, beginning no earlier than two year prior to January 12, 
     1987.  The tenant may bring an action against the landlords in any court of 
     competent jurisdiction, pursuant to Section 2206.8(a)(2) of the Rent and 
     Eviction Regulations, within one year after the landlords fail to pay the 
     aforementioned refund.  The one year time period is to be calculated from 
     when the order becomes final.  If there is no Article 78 petition of this 
     order, then the time period is one year after this order become final.

     ISSUED:


                                                                               
                                                      JOSEPH D'AGOSTA
                                                 Acting Deputy Commissioner
    

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