CK410035RT

                                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.: CK410035RT

           Keith Haggard                     DRO DOCKET NO.: 052718

                                             OWNER: S.S.Realty                
                             PETITIONER    
      ------------------------------------X                             


          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                             AND REMANDING PROCEEDING

      On November 4, 1988, the above-named tenant filed a Petition for 
      Administrative Review against an order issued on September 30, 1988, by 
      a Rent Administrator, concerning housing accommodations known as 
      Apartment 3A at 717 East 5th Street in New York City, wherein the Rent 
      Administrator dismissed the tenant's Objection to Apartment 
      Registration.

      When the tenant filed that Objection in November of 1984, he filled in 
      the heading thereof but not the balance of the form, thus stating no 
      basis for the Objection.  In August of 1988 the tenant's representative 
      stated to the Administrator that the tenant was "requesting the 
      complaint be continued for processing for a . . . determination of the 
      legal rent that should have been charged and for a computation of the 
      excess rent paid," adding that the tenant (who had moved to Miami) would 
      be visiting New York during the first week of September, when he would 
      give the representative "written authorization for the continuance of 
      the processing of the Fair Market/Rent overcharge complaint docket," and 
      that the tenant was the first rent stabilized tenant and was entitled to 
      file a fair market rent appeal.

      The ensuing order, here appealed, dismissed the proceeding because the 
      tenant had "failed to specify the nature of the objection."

      On October 21, 1989, the tenant's representative wrote seeking 
      revocation of that order, stating inter alia:  that notice of the 
      aforementioned dismissal had been sent to the tenant's former address, 
      to be received by the representative almost two weeks after it had been 
      issued; that the tenant had not made his planned trip to New York, 
      necessitating the mailing of his authorization to the representative and 
      her consequent receipt thereof after the date of the Administrator's 
      dismissal order; and that the tenant had informed the representative 
      "that he had never received any request for additional information . . 
      . to give him an opportunity to state the nature of his complaint."  
      Attached to that letter was a copy of the tenant's authorization of 
      representation, dated September 8, 1988.

      In a response to the tenant's representative dated April 10, 1989, the 
      Administrator denied her request to reopen this proceeding, stating that 







          CK410035RT


      the aforementioned letter of August, 1988, had come too late to cure the 
      defective complaint filed four years earlier.

      The petition now before the Commissioner states that it has been filed 
      to protect the tenant's rights in the absence (up to that point) of a 
      response by the Administrator to the representative's letter of August, 
      1988.  It incorporates that letter by reference, requesting that the 
      petitioner be granted a fair-market-rent review.

      The owner answers that in 1987, prior to the issuance of the Rent 
      Administrator's order, the tenant signed an agreement settling "all 
      claims between the parties, including his claim for rent overcharges for 
      which he has been withholding rent payments. . . . [T]he owner paid . . 
      . an agreed upon sum," and the case before this Division "was to have 
      been closed based thereon."  No copy of said agreement was submitted by 
      the owner.

      The Commissioner is of the opinion that this petition should be granted 
      and the matter remanded to the Rent Administrator.

      The matter was still before the Administrator when he was advised that 
      the subject Objection was to the rent that the owner had registered.  At 
      that point further inquiry--or at least a delay to allow for 
      authorization of the tenant's representative--was called for, with full 
      processing to follow if her assertion regarding such representation 
      proved authentic.  The proceeding will therefore be remanded for 
      processing of the now-amended Objection.  If it is found that the tenant 
      was the first rent-stabilized tenant or was otherwise entitled to file 
      a fair market rent appeal, the objection should be processed as a fair 
      market rent appeal.  Otherwise, it should be processed as a rent 
      overcharge complaint

      Regarding the 1987 settlement alleged by the owner, the Commissioner 
      cannot determine from the record herein, the extent to which such an 
      agreement would affect the outcome of this proceeding (for example if a 
      refund was made to the tenant of any excess rent payments).  That issue 
      can be addressed by the Administrator upon remand.

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

      ORDERED, that this petition be, and the same hereby is granted, this 
      proceeding being hereby remanded to the Rent Administrator for further 
      processing in accordance with this order and opinion.



      ISSUED:


                                                                  
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner
    

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