CB410138RO

                                  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. CB410138RO
                                              :  DRO DOCKET NO.47097
               ARGO CORPORATION                  TENANT: OSVALDO PRINCIPE

                                PETITIONER    : 
          ------------------------------------X                             
            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW


               On February 17, 1988, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on 
          January 15, 1988, by the Rent Administrator, 10 Columbus Circle, New 
          York, New York, concerning the housing accommodations known as 210 
          West 101st Street, New York, New York, Apartment No. 6A, wherein the 
          Rent Administrator determined the fair market rent pursuant to the 
          special fair market rent guideline promulgated by the New York City 
          Rent Guidelines Board for use in calculating fair market rent 
          appeals.

               The Administrative Appeal is being determined pursuant to the 
          provisions of Section 26-513 of the Rent Stabilization Law and 
          Section 2528 of the Rent Stabilization Code.

               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.  

               This proceeding was originally commenced on November 14, 1985 
          by the tenant's filing of an objection to rent/services registration 
          in which the tenant stated that he was filing a fair market rent 
          appeal, a rent overcharge complaint and that there was no building 
          wide services form posted.  The tenant also stated that he had first 
          moved to the subject apartment on June 1, 1981 at a rental of 
          $800.00 per month and had never been served with a copy of the 
          apartment registration form (hereafter RR-1 Form) by the owner.

               The owner was served with a copy of the tenant's objection and 
          answer forms pertaining to fair market rent appeals, overcharge 
          complaints and apartment/building service complaints.  The owner was 
          afforded an opportunity in the fair market rent appeal answer form 
          to submit comparability data and proof that the tenant herein had 
          been served with a DC-1 or DC-2 Notice of Initial Legal Regulated 
          Rent, but was not specifically advised of an opportunity to submit 
          proof that the tenant had been served with the RR-1 Form.  In 
          response the owner submitted a rental history for the subject 









          CB410138RO




          apartment and copies of the RR-1 Form and the 1985 apartment 
          registration form.

               In Order Number 47097, the Rent Administrator adjusted the 
          initial legal regulated rent by establishing a fair market rent of 
          $510.15 effective June 1, 1981.  The Rent Administrator also 
          directed that the owner refund excess rent of $29,931.89 to the 
          tenant which covered the period from June 1, 1981 through January 
          31, 1988.

               In this petition, the owner alleges in substance that it was 
          denied its due process rights; and that since it had only recently 
          retained an attorney, it was requesting permission to submit a 
          supplement to its petition.  A supplement to the petition dated 
          March 22, 1988 was submitted by the owner.  However it appears that 
          such supplement was not received by the DHCR on that date and the 
          owner's attorney submitted a copy of such supplement on February 1, 
          1993.  The tenant's attorney was then served with a copy of the 
          supplement.  In such supplement, the owner stated in substance that 
          on September 14, 1984, the tenant was served with a copy of the RR-1 
          Form and that since he did not file the tenant's objection within 90 
          days of such service, the fair market rent appeal should have been 
          dismissed as untimely.  In support of such contention, the owner 
          submitted a copy of an affidavit from an employee of the Rent 
          Stabilization Association, and a copy of the Post Office 
          certification and mailing list showing the RR-1 was mailed to the 
          tenant on September 14, 1984 by the Rent Stabilization Association.

               In responses to the petition and supplement to the petition, 
          the tenant stated in substance that the petition should be dismissed 
          because it was signed by the owner's attorney without authorization; 
          that the owner was afforded proper due process; that the tenant 
          never received a copy of the RR-1 Form; that pursuant to Section 
          2528.2(d) of the Rent Stabilization Code it is required that the RR- 
          1 Form be served by certified mail which the owner doesn't even 
          claim in this case; and that the owner should have registered the 
          building within 90 days of April 1, 1984 and that service on 
          September 14, 1984 was therefore untimely. 

               The owner's attorney was afforded an opportunity to submit 
          written authorization from the owner to sign the petition on behalf 
          of the owner pursuant to Section 2529.1(b)(2) of the Rent 
          Stabilization Code and did submit such written authorization on 
          December 6, 1993.

               In a subsequent affidavit dated January 14, 1994, the tenant 
          again asserted that he had never been served with a copy of the RR-1 
          Form.

               The Commissioner is of the opinion that this petition should be 
          granted.






          CB410138RO


               Pursuant to Sections 2522.3(c)(2), 2526.1(a)(2)(ii), and 
          2528.2(d) of the Rent Stabilization Code, a tenant must file a 
          challenge to the initial apartment registration (overcharge 
          complaint or fair market rent appeal) within 90 days of service of 
          the registration form on the tenant by certified mail.  Section 
          2528.2(d) further provides that for registrations served prior to 
          the effective date of that section, any method of service permitted 
          by the DHCR at the time of service shall be deemed to have the same 
          effect as service by certified mailing.

               The DHCR's instructions for service of the initial apartment 
          registration on the tenant by the owner provided for hand delivery 
          of the envelope with signed receipt, use of the Post Office "Carrier 
          Route Pre-Sort" Service through a bonded mailing house as evidenced 
          by the Post Office date-certification of the number of pieces 
          received from the mailing house for each building and the mailing 
          house addressee list or regular first class mail documented by Post 
          Office form #P.O. 3877.

               DHCR instructions further provided that the proof(s) of 
          receipt, properly signed and dated (by the tenant, post office, and 
          the mailing house, as appropriate) would be considered adequate by 
          the DHCR to establish the tenant's 90 day challenge period, which 
          would begin on the date of receipt.

               In the instant case, to document the date of mailing of the RR- 
          1 Form to the tenant, the owner submitted the Rent Stabilization 
          Association mailing house addressee list and the postal receipt for 
          the September 14, 1984 mailing.  The Commissioner finds that the 
          documentation conforms to DHCR service requirements and proves the 
          mailing of the RR-1 Form to the tenant on September 14, 1984.

               The tenant's objection was dated November 14, 1985, more than 
          a year following service of the RR-1 Form on the tenant on September 
          14, 1984.  The Commissioner therefore finds that the tenant failed 
          to file a timely fair market rent appeal and that the tenant's fair 
          market rent appeal should therefore have been dismissed.  It is 
          noted that an examination of the rental history for the subject 
          apartment discloses that all rent increases from the initial 
          stabilized rent were in accordance with guideline renewal increases 
          and that no rent overcharge occurred.  Therefore that portion of the 
          tenant's objection citing a rent overcharge complaint must also be 
          dismissed.  Contrary to the tenant's contention in answer to the 
          petition, the fact that the RR-1 Form service occurred more than 90 
          days following April 1, 1984, does not invalidate such service.

               If the owner has already complied with the Rent Administrator's 
          order and there are arrears due to the owner as a result of the 
          instant determination, the tenant is permitted to pay off the arrear 
          in 24 equal monthly installments.  Should the tenant vacate after 
          the issuance of this order or have already vacated, said arrears 





          shall be payable immediately.







          CB410138RO


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

               ORDERED, that this petition for administrative review be, and 
          the same hereby is, granted, that the order of the Rent 
          Administrator be, and the same hereby is, revoked, and it is found 
          that the tenant's fair market rent appeal and rent overcharge 
          complaint are dismissed for the reasons given in this the 
          Commissioner's order.

          ISSUED



                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner




                     






























    

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