ADM. APPEAL DOCKET NO.: DH430229RO
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 APPEAL
APPEAL OF DOCKET NO.: DH430229RO
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: AK522811FR
BIG RIVER REALTY CORP.
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 11, 1989 the above named petitioner-landlord filed
an appeal in accordance with the applicable provisions of the City
Rent Law and Regulations against an order issued on August 1, 1989
by the Rent Administrator of the Gertz Plaza, Jamaica, New York
Rent Office, concerning the housing accommodation known as 611 West
158th Street, Various Apts., New York, NY.
The issue in this proceeding is whether the Fuel Cost
Adjustments should have been suspended for the calendar year 1986.
The Rent Administrator's order appealed herein suspended all
fuel cost adjustments for the period January 1, 1986 through
December 31, 1986.
This order was based upon a finding that the owner of the
subject building had previously obtained allowable fuel cost
adjustments and failed to timely serve and file the required report
of fuel cost decrease by reason of a decrease in the price of #6
oil during the calendar year 1985.
On appeal, the landlord states, in substance, that the office
does not hold any records indicating that previous landlord charged
for fuel in 1986. If the previous landlord did in fact charge for
fuel at that time, Big River Realty Corp. should not be held
responsible for refunds to the tenants due to the fact that it was
not managing the building in 1986. It became the new managing
company as of April 1987.
After a careful consideration of the entire evidence of record
the Commissioner is of the opinion that the administrative appeal
should be denied.
ADM. APPEAL DOCKET NO.: DH430229RO
9 NYCRR 2202.13 provides that where a landlord has obtained
fuel cost adjustments and then there is a finding of the fuel price
decrease, within 60 days of the promulgation of the finding of fuel
prices, the landlord must serve and file a report of fuel price
decrease.
In early 1986, a finding was promulgated that the price of #6
fuel oil had declined during 1985. The subject landlord was
required to file and serve fuel cost decrease report on or before
May 14, 1986.
In this matter it is undisputed that a "Landlord's Report,
Certification and Notice of Fuel Cost Adjustment Eligibility-1986"
was not received by the Rent Office on or before May 14, 1986.
The Commissioner finds that the fact that the owner had
acquired the subject building in 1987 does not excuse the owner
from following the Administrator's determination because a new
owner is required pursuant to 9NYCRR 2202.24(b) to refund or credit
any fuel cost allowance increase paid by the subject tenant(s). In
general a new owner takes a building subject to the obligations of
the prior owner.
The record shows that fuel cost increases were taken in 1980
through 1982 presumably by the prior owner. Unless the current
owner deducted the 1986 Fuel Cost Adjustment (FCA) previously the
current owner is obligated to now make the refund and reduction
ordered by the Administrator.
Accordingly, the Commissioner is of the opinion the Rent
Administrator correctly suspended Fuel Cost Adjustments for the
calendar year 1986.
THEREFORE, in accordance with the applicable provisions of the
Rent and Eviction Regulations for New York City, it is
ORDERED, that this administrative appeal be, and the same
hereby is, denied, and that the order of the Rent Administrator be,
and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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