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.: DA 410075-RO
:
DRO DOCKET NO.: CDR 34,374
CHARLES H. GREENTHAL
MANAGEMENT CORP. PETITIONER : TENANT: JULIAN CAPLAN
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
AND MODIFYING THE ADMINISTRATOR'S ORDER
On January 17, 1989, the above named petitioner-owner filed a Petition for
Administrative Review against an order issued on December 16, 1988, by the
Rent Administrator, 10 Columbus Circle, New York, New York, concerning
housing accommodations known as Apartment 9B, 350 West 57th Street, New
York, New York, wherein the Rent Administrator determined that the rent
exceeded the fair market rent and ordered a refund of $10,913.33 in excess
rent, including excess security.
The Commissioner notes that this proceeding was initiated 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 Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issues
raised by the administrative appeal.
The tenant commenced this proceeding on February 17, 1984 by filing an
overcharge complaint and a Fair Market Rent Appeal (FMRA) with the New
York City Conciliation and Appeals Board (CAB), the agency formerly
charged with enforcing the Rent Stabilization Law, based in part,
respectively, on an alleged failure by the owner to provide a rental
history and on the allegation that the Initial Legal Regulated Rent
exceeded the fair market rent for the subject apartment.
On August 10, 1984, under docket number TC 082703-G, the owner was sent an
answer form for the tenant's overcharge complaint which the owner
returned, stating therein that the complaining tenant was the first
stabilized tenant. Accordingly, all other processing dealt only with the
tenant's FMRA. However the Administrator neglected to explicitly either
dismiss that overcharge complaint or consolidate it with the FMRA.
On May 7, 1984 the tenant's FMRA was served on the owner and the owner was
informed that the fair market rent would be determined by a two-pronged
DOCKET NUMBER: DA 410075-RO
approach, i.e., a special rent guidelines order for fair market rents
issued by the Rent Guidelines Board, and a comparability study of rents
generally prevailing in the same area for substantially similar
apartments. The owner was informed that "[c]omparable rents may not be
considered unless you furnish all of the information required on [the
attached] Schedules A and B."
The owner was given twenty-one days to submit the comparability data and
advised that failure to do so would result in the fair market rent being
determined solely by the special rent guidelines.
The owner failed to submit the requested data.
On July 27, 1987 the owner was sent a notice which stated that it was in
response to a request by the owner to have the comparability study based
on rents charged after July 1, 1974. The owner was advised that to use
that method the "enclosed" forms must be used.
In a letter dated August 14, 1987, the owner acknowledged receipt of the
July 27, 1987 notice, but stated that the form had not been requested
according to its records. The owner asked that a copy of the referred to
request be sent to the owner. The owner submitted no rental data with
this letter, nor did the owner state that the forms referred to in the
July 27, 1987 notice had not been received.
In a letter dated September 10, 1987 the owner confirmed a telephone
conversation with the Administrator the preceding day regarding the July
27, 1987 notice, and requested that the forms referred to in the notice
be forwarded, as they were allegedly not enclosed with the notice.
The record shows that on September 17, 1987 a "second set" consisting of
the notice and comparable rent forms was sent to the owner. No response
was received.
On April 28, 1988 a "Summary Notice" was sent to the owner stating that
had the subject apartment remained under rent control the 1978 Maximum
Rent for the apartment would have been $520.94 and that the fair market
rent for the subject apartment would be based on the 1978 Maximum Rent
increased by the Special Fair Market Rent Guidelines order. The owner was
given ten days to comment. Again, no response was received.
In order number CDR 34,374, herein under review, the Administrator
determined the fair market rent to be $625.13 based solely on the 1978
Maximum Base Rent of $520.94, increased by 20% pursuant to Special
Guidelines Order Number 11. Thus, the actual stabilized rent of $768.06
charged the complaining tenant in 1979 was found to have exceeded the fair
market rent by $142.93, resulting in $10,913.33 in excess rent and excess
security being collected from December 1, 1979 through May 31, 1986.
In this petition, the owner contends that the Rent Administrator's order
is incorrect and should be modified because the owner replied to the
tenant's overcharge complaint. In addition, the owner described the
above-stated correspondence regarding the alternate comparability study
and the forms therefor, including the fact that the owner had requested
"that all necessary papers [for the comparability study] be directed to
the attention of the 'undersigned." The owner attached a purported copy
DOCKET NUMBER: DA 410075-RO
of a DC-2 notice allegedly served on the tenant by the "previous agents"
and a copy of the Landlord's Report of Statutory Decontrol (Form R-42).
After the above recitation and list of attachments, the petition
concludes: "Notwithstanding the aforementioned, landlord respect[fully]
request[s] the opportunity to submit the apartment comparability as
previously extended. Should additional information or any questions be
necessary, please direct same to the attention of the writer."
Nowhere in the petition does the owner allege that it did not receive the
comparability forms after requesting them from the Administrator in its
September 10, 1987 letter.
In answer to this petition, the tenant contends that the order should be
upheld because the owner was given the opportunity to submit comparability
data and failed to do so even after being notified that the FMRA would be
determined solely on the basis of the 1978 Maximum Base Rent of $520.94.
The tenant contends that the owner failed to point out any error in fact
or law in the Administrator's order, although requested to do so in part
fourteen of the Administrative Review form.
In a letter dated March 30, 1989, the owner responded to the tenant's
answer to the petition. In the response, the owner alleges that its
letters of August 14, 1987 and September 10, 1987 show that it did not
fail to submit the requested data. (As stated above, these letters,
respectively, request a copy of the owner's request for a alternative
comparability study; and request the forms for that study. Neither letter
included any comparability data.)
In addition, the owner alleges that the April 28, 1988 "Summary Notice"
(which gave the owner 10 days to respond to the Administrator's statement
that the FMRA would be decided on the basis of the 1978 Maximum Rent) was
not received by the owner. Furthermore, the owner noted that its letter
dated September 10, 1987 advised the Administrator to direct all future
correspondence to "the undersigned" i.e., to a Mrs. Walsh. The owner
again submits the DC-2 and R-42 forms, described above, which were
submitted with its petition.
The Commissioner is of the opinion that this petition should be denied and
the Administrator's order should be modified.
At the outset, the Commissioner notes that the DC-2 notice was, in
general, to be served by an owner by certified mail on the first
stabilized tenant after vacancy decontrol. The form notifies the tenant
of the 1974 Maximum Base Rent of the subject apartment and gives the
tenant 90 days in which to file a FMRA. The DC-2 form submitted by the
owner is dated April 28, 1980 and states the 1974 Maximum Rent to be
$387.79. The place left for the signature of the owner or principal has
the typed name of the prior agent but no signature. The only proof of
mailing for this form is a copy of a blank "receipt for certified mail,"
i.e., a receipt stating no address, no fee, and no date. Accordingly, the
Commissioner finds that the tenant was not time-barred from filing a FMRA
in 1984. [The R-42 form, Landlord's Report of Statutory Decontrol, was
properly filed (and signed) in 1980, but such form neither informs a
tenant of his or her right to file a FMRA nor does it create any time
limitation on a tenant's right to file a FMRA.]
DOCKET NUMBER: DA 410075-RO
As noted above, the petitioner has not alleged that no response was
received after the owner requested in its September 10, 1987 letter that
it be sent certain forms to complete the comparability study. Nor did the
owner allege that the July 27, 1987 notice regarding alternative
comparability was the first knowledge that the owner had of the pending
FMRA. Indeed, the fact that the owner merely asked for a copy of the
request and forms referred to in the Administrator's July 27, 1987 Notice
clearly shows that the owner had prior knowledge of the FMRA. The record
shows that comparability forms were sent to the owner on May 7, 1984 and
July 19, 1985 with copies of the tenant's FMRA. The July 27, 1987 notice
also stated that alternate comparability forms were attached thereto.
When notified by the owner that the alternate forms were not attached to
the July 27, 1987 notice, the Administrator sent an additional set of
alternate comparability forms to the owner. All mailings, including the
Summary Notice, which the owner denies receiving, were sent to the
managing agent corporation correctly addressed. None of the mailings were
returned as undelivered. The owner responded to at least three of these
mailings: the overcharge complaint, the July 27, 1987 notice, and the
Administrator's order, even though none of those three mailings were
directed to the attention of Mrs. Walsh. The Commissioner does not find
it credible that a document relating to a pending proceeding before the
DHCR, correctly addressed to the corporate agent, a major real estate
management company, will not be received because not directed to the
attention of a Ms. Walsh, who works in the "Renting Department" of the
corporation, and who uses the corporate letterhead showing the same
address. Therefore, to the extent that this appeal is grounded on the
unstated allegation that the petitioner was not given the opportunity to
submit comparability data to the Administrator, it is hereby denied.
On the other hand, the Commissioner notes that the petition states:
"Notwithstanding the aforementioned, Landlord respect[fully] request[s]
the opportunity to submit the apartment comparability as previously
extended." Taken literally, this statement is not an allegation that the
owner was in any way denied due process, but is merely a request that the
owner be given yet another opportunity to submit the comparability data.
As such, the tenant is correct that the owner has not alleged an error in
law or fact and the petition must be denied for that reason.
The owner is directed to refund over a period not exceeding six months
from the date of this order, any rent paid by the tenant herein in excess
of the lawful stabilized rent, as well as any security deposit in excess
of one month's rent.
In the event the owner does not take appropriate action to comply within
the period in which the owner may institute a proceeding pursuant to
Article Seventy-eight of the Civil Practice Law and Rules, the tenant can
proceed against the owner in a court of competent jurisdiction.
Finally, the Administrator's order is hereby modified to dismiss the
tenant's overcharge complaint, docket number TC-082703-G, which was
DOCKET NUMBER: DA 410075-RO
tacitly consolidated with the tenant's FMRA. Since the tenant was the
first stabilized tenant, the proceedings were properly processed as a
FMRA.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied and the
Rent Administrator's order be, and the same hereby is, affirmed as
modified herein.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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