DOCKET NO.: CD 430048-RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. CD 430048-RO
: DRO DOCKET NO. ZLC 000093-FR/85
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 6, 1988 the above named petitioner-landlord filed an appeal in
accordance with the applicable provisions of the City Rent Law and
Regulations against an order issued on March 7, 1988, by the Rent
Administrator of the Gertz Plaza, Jamaica, Rent Office, concerning the
housing accommodation known as 306 East 11th Street, various apartments,
New York, NY.
The issue in this proceeding is whether the owner filed a report of fuel
cost decrease with the Administrator in a timely manner.
This proceeding was initiated on November 22, 1987, on which date the
Administrator mailed to the owner a Notice of Proceeding to Suspend and
Revoke Fuel Cost Adjustment, based on the owner's having failed to file a
report of the decrease on the price of #6 fuel oil during 1984.
On December 9, 1985 the owner answered the notice by stating that the fuel
used at the subject premises was #4 fuel oil, and that since (according to
the owner) the price of the #4 fuel oil rose in 1984, there was no need to
file a report. The tenant attached a copy of a fuel delivery bill from
Mid-town Heating Corp. as proof of its contention that #4 fuel oil was
used. The bill was dated November 5, 1985.
On January 27, 1988, in response to the Administrator's inquiry, the owner
stated that the subject premises had converted from #6 oil to #4 oil in
On March 7, 1988 the Administrator issued the order being appealed herein
finding that the owner had failed to submit on a timely basis a report of
fuel cost decrease during 1984. The Administrator ordered a suspension of
the total fuel cost rent adjustment for all of 1985. The Administrator
further directed the owner to refund to the tenants any fuel cost increase
paid by them during 1985.
On appeal, the landlord argues that since there was only an "extremely
small increase" in the cost of #4 fuel oil during 1985, the owner decided
not to apply for the 1985 fuel cost adjustment.
The Commissioner is of the opinion that this petition should be denied.
DOCKET NO.: CD 430048-RO
A review of the record reveals a great deal of ambiguity concerning the
type of fuel oil used and the date it was first used. In its December 9,
1985 response to the Administrator, the owner asserted (and documented)
that the subject premises used #4 fuel oil in 1985. On January 27, 1988,
the owner again responded to the Administrator, but this time the owner
stated that it had only converted to #4 oil the year before. On appeal,
the owner again asserts that #4 oil was in use during 1985. Moreover the
copy of the Administrator's order in the Administrator's file states that
the owner did not file a report of price decrease of #6 fuel oil, while the
supposedly identical copy of the order served upon the owner is concerned
with #2 fuel oil.
The Commissioner believes that the above-described conflicting and
ambiguous testimony is irrelevant to the Administrator's finding.
The Commissioner notified the owner that proceedings to suspend and revoke
its fuel cost adjustment were being commenced due to owner's ostensible
failure to file a report of a 1984 decrease in the price of #6 fuel oil.
The owner answered by stating that it used #4 fuel oil during 1985. Owner
also stated that since there was a slight increase in the price of #4 fuel
oil during 1984, it was not required to file a report with the
An examination of the record reveals that contrary to owner's contention,
the price of #4 fuel oil decreased during 1984. Moreover, the owner has
not sought to prove that it used #4 fuel oil during 1984 as it sought to
prove that it used #4 fuel oil during 1985. Regardless of the type of fuel
that the owner may have purchased during 1984, the owner has not challenged
the Administrator's finding, namely that the owner did not file a report a
1984 fuel cost decrease with the Administrator on a timely basis.
The Commissioner is thus of the opinion that the Rent Administrator
correctly suspended Fuel Cost Adjustments for the calendar year 1984.
THEREFORE, in accordance with the applicable provisions of the Rent and
Eviction Regulations for New York City, it is
ORDERED, that this administrative appeal be, and the same hereby is,
denied, and that the order of the Rent Administrator be, and the same
hereby is, affirmed.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner