DG 210302 RO
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.: DG 210302 RO
University Towers Associates, DISTRICT RENT ADMINISTRATOR
DOCKET NO.: 041511
PETITIONER
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ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
On July 20, 1989, the above named petitioner-owner filed a
Petition for Administrative Review against an order issued on
July 3, 1989, by the District Rent Administrator, 92-31 Union
Hall Street, Jamaica, New York, concerning housing accommodations
known as Apartment 4K, 122 Ashland Place, Brooklyn, New York,
wherein the District Rent Administrator determined that the owner
had overcharged the tenant.
The issue in this appeal is whether the District Rent
Administrator's order was warranted.
The applicable sections of the law are Sections 2522.6 and 2526.1
of the Rent Stabilization Code.
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant
to the issue raised by the administrative appeal.
This proceeding was commenced on December 17, 1984 by the
tenant's filing of a Tenant's Objection to Rent/Services
Registration wherein the tenant contended in substance that she
was being overcharged; that a stove, refrigerator, blinds and
shades were services which were omitted from the apartment
registration; that the building registration was not posted; that
the laundry room was not being maintained; that the building was
infested with vermin; and that the laundry room and extermination
services were omitted from the building services registration.
On June 8, 1987 and August 21, 1987, the owner was served with
copies of the tenant's objection, but failed to submit an answer.
On September 29, 1987, January 13, 1989 and March 10, 1989, the
owner was served with Final Notices of Pending Default demanding
complete copies of all leases for the subject apartment from
April 1, 1980 to date.
On March 16, 1989, the owner submitted its answer to the tenant's
objection and contended in substance that the matter of a rent
overcharge was decided on December 12, 1986 under Docket Number
ZAA-201065-R wherein it was determined that the tenant did not
file a timely objection to the 1984 apartment registration, that
DG 210302 RO
therefore the registered rent became the initial legal registered
rent, that no overcharge occurred, and that the Division's
authority to regulate rents and adjudica e complaints was pre-
empted by the U.S. Department of Housing and Urban Development
(HUD) on October 17, 1985. Unfortunately, the owner's answer was
received by the Division, but was never delivered to or
considered by the Administrator.
On April 22, 1989 the owner was served with a Notice of Treble
Damages wherein the owner was informed that an overcharge did
exist and that treble damages would be assessed.
On May 22, 1989, another Final Notice of Pending Default was
served upon the owner along with a request for proof to
substantiate the fact that the tenant had been served with a copy
of the 1984 apartment registration. On June 1, 1989, the owner
resubmitted its answer of March 16, 1989. Again, this submission
was received by the Division, but was never delivered to or
considered by the Administrator.
In Docket Number 041511 issued July 3, 1989, the District Rent
Administrator determined that the tenant had filed a timely
objection to the 1984 apartment registration, but that the owner
had failed to submit a complete rental history for the subject
apartment. Accordingly, the Administrator established the
tenant's lawful stabilization rent as $287.85 (the tenant's
initial rent minus a guidelines increase) and determined that the
tenant had been overcharged since September 1, 1983 a total of
$9,163.56 which included excess security and treble damages on
that portion of the overcharge occurring on or after April 1,
1984. The Administrator further determined that the 1984
apartment registration was not mailed to the tenant until
February 19, 1985. Finally, the Administrator determined that
the owner did provide the services of a stove, refrigerator,
shades and blinds due to the owner's failure to refute the
tenant's claim.
In this petition, the owner contends in substance that the
District Rent Administrator's order is incorrect and should be
reversed because the tenant's original complaint was never
received as it was mailed to its former address, the owner did
not default in this proceeding as it submitted two answers during
the proceeding, and the same issue was raised and decided on
December 12, 1986 in Docket Number ZAA-201065-R.
In response, the tenant contends in substance that the owner's
petition should be denied.
The Commissioner is of the opinion that this proceeding must be
remanded for further consideration.
A review of the record in the instant case indicates that the
owner submitted a copy of its answer on two separate occasions
during the proceeding before the Administrator. Said owner's
answer relied totally on a previous order of the Administrator
(ZAA-201065-R) involving the subject premises which found that
the tenant had failed to file a timely objection to the 1984
apartment registration and that no overcharge occurred.
DG 210302 RO
Based on the foregoing, the Commissioner finds that the
Administrator incorrectly defaulted the owner for failing to
submit an answer. The Commissioner also finds that the
Administrator incorrectly established the lawful rents and
amounts of overcharge after October 17, 1985 which is the date on
which HUD pre-empted the jurisdiction of the Division to regulate
rents and adjudicate complaints involving the subject premises.
The Commissioner further finds that the order of the District
Rent Administrator which was issued on December 12, 1986 under
Docket Number ZAA-201065-R is incorrect and must be revoked.
Said order erroneously concluded that the tenant had failed to
file a timely objection to the 1984 apartment registration. The
evidence of record indicates that the tenant's objection was
dated December 17, 1984 and postmarked December 19, 1984. The
1984 Apartment Registration (RR-1 Form) which was submitted by
the owner along with its petition states that the said
registration was prepared on September 25, 1984. Thus, even
assuming, arguendo, that the tenant did receive the apartment
registration on September, 25, 1984, the tenant's objection was
timely as it was filed on December 19, 1984 which was within
ninety days of receipt of the apartment registration. The
Commissioner notes that the 1984 Apartment Registration was not
mailed to the tenant until February 19, 1985.
Accordingly, this proceeding must be remanded to determined the
lawful stabilization rents and the amounts of overcharge, if any,
from the base rent date of April 1, 1980 through October 16,
1985. It should be noted that the owner was not entitled to
demand or collect any rent increase from April 1, 1984 to
February 19, 1985 (the date the apartment registration was mailed
to the tenant). All parties are to be notified and given a
chance to submit evidence in such remanded proceeding. The owner
should be directed to submit a complete rental history for the
subject apartment from the base rent date of April 1, 1980.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be and the same hereby is granted to
the extent of remanding this proceeding to the District Rent
Administrator for further processing in accordance with this
order and opinion. The automatic stay of so much of the
District Rent Administrator's order as directed a refund is
hereby continued until a new order is issued upon remand.
However, the Administrator's determination as to the rent is not
stayed and shall remain in effect, except for any adjustment
pursuant to lease renewals, until the Administrator issues a new
Order upon remand. The Administrator's order which was issued on
December 12, 1986 under Docket Number ZAA-201065-R is hereby
revoked.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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