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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.: CK110178RO
KINGSWOOD MANAGEMENT CORP. RENT
ADMINISTRATOR'S DOCKET
NO.: CD110133OR
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On November 9, 1988 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued on October 4, 1988. The order concerned the
housing accommodations known as Apt. 2M located at 144-20 78th
Road, Flushing, N.Y. The Administrator denied the owner's rent
restoration application.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The owner commenced this proceeding on April 19, 1988 by
filing a rent restoration application wherein it alleged that the
tenant was refusing to allow access to the apartment so that the
owner could make the repairs required by the Administrator's order
in Docket No. BB110474S. The Commissioner notes that the rent was
ordered reduced based on findings of frayed and broken apartment
door, defective windows and window sills and cracked living room
and dining room walls and ceilings.
The tenant was served with a copy of the application and
afforded an opportunity to respond. The tenant filed a response on
June 9, 1988 and stated, in sum, that she had not denied access to
the owner and that the owner had not made any of the required
repairs.
The Administrator determined that it was necessary to order a
"no access" inspection of the subject apartment. A notice was sent
to both the owner and tenant, on September 7, 1988, informing them
that the inspection would be conducted on September 15, 1988 and
that both were required to be present. The inspection was
conducted on September 15, 1988. The tenant was present but the
owner did not appear. The inspector reported that the cracked
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walls and ceilings in the living room and dining room were repaired
in an unworkmanlike manner but that all other services had been
restored.
The Administrator issued the order being appealed on October
4, 1988 and denied the application based on the report of the
inspector.
On appeal the owner, as represented by counsel, states that
it was denied due process in that the notice of the "no access"
inspection was not received by it until after the scheduled date
for the inspection. The owner attaches proof of the fact that the
notice was received late as well as a letter it wrote to the
inspector apprising him of the fact. The owner argues that, since
it was not afforded the opportunity to be present and make repairs,
that the order being appealed should be revoked. The petition was
served on the tenant on December 22, 1988.
The tenant filed a response on December 28, 1988 and stated,
in sum, that the allegations in the petition were not correct and
that the order being appealed should be affirmed.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
The Commissioner notes that the notice dated September 7, 1988
was properly addressed to the owner and not returned to the DHCR by
the post office. A letter or notice that is properly addressed and
not returned is presumed to have been duly delivered to the
intended recipient by the post office in the normal course of
business. The date stamp contained on the back of the notice in
question was put there by the petitioner and not the DHCR. The
stamp is not dispositive of the issue of when the notice was
actually received by the petitioner. The order being appealed is
affirmed. The Commissioner notes that the owner reapplied for rent
restoration and the application was granted effective August 1,
1989 (see Docket No. DF110141OR).
THEREFORE, pursuant to the Rent Stabilization Law and Code, it
is
ORDERED, that this petition be, and the same hereby is,
denied, and that the Rent Administrator's order be, and the same
hereby is, affirmed
ISSUED:
LULA M. ANDERSON
Deputy Commissioner
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