ADM. REVIEW DOCKET NOS.: DI220335RO, EE220349RO
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 NOS.: DI220335RO,
EE220349RO
ANIS KHAN DISTRICT RENT
ADMINISTRATOR'S DOCKET
NOS.: AK220459FR,
BH223306FR
PETITIONER
------------------------------------X Tenant: Antonio Lopez
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
These petitions have been consolidated as they involve common
issues of law and fact. The above named petitioner filed timely
Petitions for Administrative Review against orders issued on May
15, 1989 and April 26, 1990, by the Rent Administrator of the Gertz
Plaza, Jamaica, New York, concerning housing accommodations known
as 72 Greenpoint Avenue, Apt. 1st Fl., Brooklyn, New York.
The issue in this proceeding is whether Fuel Cost Adjustments
should have been suspended for the calendar years 1986 and 1987.
The Rent Administrator's orders appealed herein suspended all
Fuel cost adjustments for the period January 1, 1986 through
December 31, 1986 and January 1, 1987 through December 31, 1987.
These orders 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
Brooklyn Union "Non Interruptible" Gas during the calendar years
1985 and 1986.
On appeal, the landlord states, in substance, that in 1984 he
came to know that the subject tenant took possession of the subject
premises as an employee of the previous landlord. After learning
this, the landlord stopped filing the Fuel Cost Adjustments for the
subject tenant, and registered the subject apartment with the DHCR
as a Rent Stabilized apartment. Accordingly, the landlord implies
the apartment is not subject to Fuel Cost Adjustments. In
addition, the landlord states, that the subject tenant failed to
provide a lease or rent receipts prior to October 1973.
ADM. REVIEW DOCKET NOS.: DI220335RO, EE220349RO
After a careful consideration of the entire evidence of
record, the Commissioner is of the opinion that the administrative
appeals should be denied.
9NYCRR 2202.13 provides that where a landlord has obtained
fuel cost adjustment and then there is a finding of fuel price
decrease, within 60 days of the promulgation of the finding on fuel
prices, the landlord must serve and file a report of Fuel Price
decrease.
In early 1986 and 1987, findings were promulgated that the
price of Brooklyn Union "Non-Interruptible" Gas had declined during
1985 and 1986. The subject landlord was required to file and serve
fuel cost decrease report on or before May 14, 1986 and July 31,
1987. It is undisputed that no such filings took place. The
Suspension Procedure is initiated by the Division whenever an owner
fails to timely file a notice of Fuel decrease.
The Commissioner notes that the Administrator's order required
the landlord to refund money to the tenant only if a fuel cost
adjustment increase was actually collected. The Commissioner
further notes that it is implied in the Administrator's order that
if the owner did not collect any fuel cost adjustment for the
period covered by the orders then no refund by the owner was
required by the order. Accordingly, the owner was not adversely
affected by the Administrator's order if it is true that no Fuel
Cost Adjustments were collected from these tenants for the years in
question.
A review of the record reveals that from 1980 through 1984 the
landlord did file the Fuel Cost Adjustment Report for the subject
tenant.
This Order is without prejudice to the right of either party
to commence a separate proceeding to determine the status of the
subject apartment.
THEREFORE, in accordance with the applicable provisions of the
Rent and Eviction Regulations for New York City, it is
ORDERED, that these administrative appeals be, and the same
hereby are, denied, and that the orders of the Rent Administrator
be, and the same hereby are, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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