Adm. Rev. Docket No.: CD810144RO
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. CD810144RT
NICHOLAS AND ANTOINETTE PANELLA, :
DISTRICT RENT
ADMINISTRATOR'S
PETITIONERS : DOCKET NO. 009786
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LANDLORD: TOWER
PROPERTIES
ORDER AND OPINION REMANDING PROCEEDING ON APPEAL AND MODIFYING
ADMINISTRATOR'S ORDER AND DETERMINATION
On April 1, 1988, the above-named petitioner-tenants filed a
Petition for Administrative Review against an Order and
Determination issued on March 8, 1988, by the Administrator at 10
Columbus Circle, New York, New York, concerning housing
accommodations known as Apartment 1-A at 106 Union Road, Spring
Valley, New York, insofar as it dismissed the tenants' Fair Market
Rent Appeal (FMRA) as untimely.
The Commissioner has reviewed all the evidence in the record and
has carefully considered that portion of the record relevant to the
issues herein.
This proceeding was commenced when the tenants filed an Objection
to Rent/Services Registration dated July 13, 1984. In said
Objection, the tenants alleged that they had received their Initial
Apartment Registration by hand on June 22, 1984 and that the
initial registered rent was not the fair market rent and that the
equipment and services portion of the initial registration
statement was incorrect or had omitted certain equipment.
In the appealed Order and Determination, the Administrator noted
that the landlord had submitted certain rental information, but had
failed to respond as to the services and equipment portion of the
Objection. The Administrator went on to state that the subject
Adm. Rev. Docket No.: CD810144RO
registration statement would be amended to reflect the tenants'
allegations as to the services and equipment. The Administrator
also stated that since the FMRA had not been filed within ninety
days of the local effective date (January 1, 1979) of the Emergency
Tenant Protection Act of 1974 (ETPA), it was dismissed as untimely.
In their Petition for Administrative Review, the tenants assert, in
substance, that their FMRA was timely as it had been filed within
ninety days of their receipt of their initial apartment
registration statement; that they were not in occupancy on the
local effective date and had not taken occupancy until September of
1983.
The Commissioner is of the opinion that this matter should be
remanded to the Administrator for further appropriate processing.
The Commissioner notes that the Administrator's Order and
Determination reads, in pertinent part, as follows:
Based on the evidence in the record, it is determined
that the borough of Spring Valley came under the
Emergency Tenant Protection Act of 1974 on January 1,
1979.
Tenant in occupancy had ninety (90) days from that date
to challenge the Fair Market Rent. Since no challenge was
filed within the period allowed, the rent in effect can
not be challenged. Therefore, this objection concerning
the fair market rent is untimely and hereby dismissed.
The Commissioner further notes that it is undisputed that the
apartment was occupied on the local effective date; albeit not by
the tenants herein. The Commissioner finds that the Administrator
used an incorrect starting point for the commencement of the period
of time within which a FMRA must be filed as to an apartment that
was occupied on the local effective date.
Section 9(b) (which may also be cited as Section 8629(b),
McKinney's Unconsolidated Laws of New York, Vol. 65) of the ETPA
limits the time for filing a FMRA to within ninety days after
notice has been received by the tenant in writing, by certified
mail, as to the initial legal regulated rent and of the tenant's
right to challenge that rent in a FMRA. That notice, mandated by
Section 9(d), should have been sent by the landlord within thirty
days of the local effective date.
The Commissioner finds that it is clear from the language of the
appealed order itself that the Administrator based the dismissal of
this FMRA on the mistaken belief that the ninety days ran from the
local effective date. The Commissioner also finds that the language
of said order contains no mention of there being any evidence
Adm. Rev. Docket No.: CD810144RO
before the Administrator to show that the notice the landlord was
required to give within thirty days of the local effective date had
been given.
Therefore, the Commissioner finds that this proceeding should be
remanded to the Administrator for further appropriate processing in
accordance with this Order and Opinion.
THEREFORE, pursuant to all of the applicable statutes and
regulations, it is
ORDERED, that this proceeding should be, and the same hereby is
remanded to the Administrator for further processing in accordance
with this Order and Opinion; and that the Administrator's Order and
Determination be, and the same hereby is, modified so as to delete
that provision whereby the tenants' Fair Market Rent Appeal was
dismissed as untimely filed.
ISSUED:
JOSEPH A. D'AGOSTA,
Deputy Commissioner
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