CD410032RO
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. CD410032RO
: DRO DOCKET NO.L3113421RT
WEINREB MANAGEMENT TENANT: WILLIAM A. JUMP III
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On April 27, 1988, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on March
25, 1988, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as 51
West 86th Street, New York, New York, Apartment No. 1602, wherein
the Rent Administrator determined that the owner had overcharged the
tenant.
The Commissioner notes that this proceeding was filed prior to
April 1, 1984. Sections 2526.1 (a) (4) and 2521.1 (d) of the Rent
Stabilization Code (effective May 1, 1987) governing rent overcharge
and fair market rent proceedings provide that determination of these
matters be based upon the law or code provisions in effect on March
31, 1984. Therefore, unless otherwise indicated, reference to
Sections of the Rent Stabilization Code (Code) contained herein are
to the Code in effect on April 30, 1987.
The Administrative Appeal is being determined pursuant to the
provisions of Sections 25, 26, and 42A 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 in March, 1984 by the
tenant's filing of a rent overcharge complaint and a fair market
rent appeal. The tenant stated that he first moved to the subject
apartment on November 1,1980 at a rental of $719.40 per month.
In response to the tenant's complaints, the owner stated in
substance that the fair market rent appeal should be dismissed as
untimely since the owner had served the prior tenant with a copy of
the required Notice of Initial Legal Regulated Rent (hereafter DC-2
Notice) in 1980 and also submitted a complete rental history since
the initial occupancy by the first rent stabilized tenant in 1976.
CD410032RO
In support of its contentions, the owner also submitted a copy of
the DC-2 Notice with proof of service on the prior tenant by
certified mail on June 13, 1980. The owner was asked to submit a
copy of the DC-2 Notice with the prior tenant's signature on it but
did not do so.
In Order Number CDR 33,054, the Rent Administrator determined
that the owner had failed to submit a complete rental history and
based thereon, found a rent overcharge of $25,691.55 and directed
the owner to refund such overcharge to the tenant.
In this petition, the owner alleges in substance that it did
supply a complete rental history; that it did submit proof that the
DC-2 Notice was served on the prior tenant by certified mail and
that the signature of the tenant on the return receipt form was not
required and thus not obtained by the owner in this case.
In answer to the owner's petition, the tenant stated in
substance that the Rent Administrator's order should be affirmed.
The Commissioner is of the opinion that this petition should be
granted.
Section 26 of the Rent Stabilization Code provides that service
of the DC-2 form be by certified mail. It doesn't require that the
certified mail include a return receipt requested form with the
tenant's signature. Accordingly, the owner's submission of proof of
service of the DC-2 form by certified mail should have been accepted
by the Rent Administrator. Further Section 25 of the Rent
Stabilization Code requires that a fair market rent appeal be filed
within 90 days after service of the DC-2 form on the tenant. Since
the tenant herein filed his fair market rent appeal more than 90
days after service of the DC-2 form on the prior tenant, it must be
dismissed.
Further, the evidence of record discloses that the owner
submitted a complete rental history from the inception of the
initial stabilized tenancy in 1976. An examination of such rental
history discloses that the initial rent in 1976 was $550.00 and that
the owner has taken only lawful increases since that date in
accordance with the rent guidelines. It is noted that the lawful
stabilization rent as of November 1, 1987 is $873.08. Accordingly,
no default and no rent overcharge occurred and the Rent
Administrator's order to that effect must be revoked.
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
arrears 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.
CD410032RO
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, and, that the order of the Rent
Administrator be, and the same hereby is, revoked, and it is found
that no rent overcharge occurred and that the tenant's fair market
rent appeal should be dismissed.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
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