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
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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
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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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