EG420236RT

                                  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. EG420236RT
                                              :  DRO DOCKET NO.BJ410027RP
               ROBIN DANAR                       

                                PETITIONER    : 
          ------------------------------------X                             
                   ORDER AND OPINION REMANDING PROCEEDING ON APPEAL


               On July 16, 1990, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on June 
          15, 1990, by the Rent Administrator, 92-31 Union Hall Street, 
          Jamaica, New York, concerning the housing accommodations known as 
          1689 First Avenue, New York, New York, Apartment No. 1, wherein the 
          Rent Administrator determined that the owner had overcharged the 
          tenant but rejected the tenant's fair market rent adjustment 
          application.
               
               The Commissioner notes that this proceeding was filed 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 Administrative Appeal is being determined pursuant to the 
          provisions of Sections 25 and 26 of the Rent Stabilization Code. 

               The issue herein is whether the Rent Administrator's order was 
          warranted.

               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 originally commenced in March, 1984, by the 
          tenant's filing of a fair market rent adjustment application and a 
          rent overcharge complaint.  In his application and complaint, the 
          tenant stated that he first moved to the subject apartment on May 1, 
          1980 at a rental of $358.76 per month.

               In response to the tenant's applications, the owner stated 
          inter alia that the Initial Legal Regulated Rent Notice (hereafter 
          DC-2 Notice) was personally served on the tenant by the 
          superintendent in 1980 when the first apartment lease was served on 
          the tenant by said superintendent.  The owner also submitted a copy 









          EG420236RT



          of the DC-2 Notice it claimed was served on the tenant.  Said DC-2 
          Notice did not contain the required information regarding the 
          maximum base rent of the subject apartment when it was rent 
          controlled.  Rather that portion of the DC-2 was left blank and the 
          owner superimposed over it the following statement: "The rent of 
          this apartment is calculated on the basis of Fair Market Value as 
          compared to a similar apartment already listed with the Rent 
          Stabilization Association of New York City".

               In a statement dated July 21, 1986, the tenant stated that the 
          DC-2 Notice submitted to the DHCR by the owner was incorrectly 
          filled out and that the tenant foolishly believed the typed 
          statement by the owner regarding the fair market value and that 
          legal calculations had been done by the proper authorities.  In a 
          statement dated October 8, 1987, the tenant stated that he did not 
          receive the DC-2 Notice by certified mail as required.

               On September 5, 1986, the Rent Administrator issued an order 
          rejecting the tenant's fair market rent adjustment application on 
          the basis that the tenant's application was filed more than ninety 
          (90) days after the tenant received the DC-2 Notice.

               On October 23, 1987, the Rent Administrator issued a Notice of 
          Commencement of Proceeding to Reconsider the Order issued on 
          September 5, 1986.  On June 15, 1990, the Rent Administrator issued 
          an amended order finding a rent overcharge of $480.22 and again 
          rejecting the tenant's fair market rent adjustment application on 
          the basis that said application was not timely filed.

               In this petition, the tenant alleges in substance that his fair 
          market rent adjustment application should not have been rejected 
          since the DC-2 Notice was not served by certified mail as required, 
          but rather was stuffed into an envelope with the lease so that the 
          tenant did not recognize its significance and the tenant further 
          alleges that the figures used in the rent calculation chart were 
          confusing.

               The Commissioner is of the opinion that the tenant's petition 
          should be granted and the proceeding remanded to determine the 
          tenant's fair market rent adjustment application on the merits.

               Section 26 of the former Rent Stabilization Code provides in 
          pertinent part that all tenants who are entitled to apply for an 
          adjustment of the initial legal regulated rent shall be entitled to 
          receive notice of such rent together with a statement as to the 
          right of appeal and such notice (here the DC-2 Notice) shall be 
          served by the owner upon every such tenant by certified mail.

               In the instant case, although the tenant concedes on appeal 
          that he received the DC-2 Notice, he states that such Notice was 
          stuffed into an envelope together with his lease and no mention was 
          made of this document at the time of delivery by the superintendent.  






          EG420236RT

          Further the record shows that the DC-2 Notice was not served by 
          certified mail in accordance with Section 26.  Moreover, it is noted 
          that the DC-2 Notice was fatally defective as the required rental 
          information (maximum base rents when apartment was rent controlled) 
          was not filled out and the owner had superimposed its own 
          unauthorized statement on the DC-2 form.  The Commissioner is of the 
          opinion that service of this defective DC-2 form did not properly 
          apprise the tenant of the information needed to make an informed 
          decision as to whether to file a fair market rent adjustment 
          application and therefore did not start the running of the ninety 
          (90) day period which the tenant had for the filing of his 
          application.  Accordingly, this proceeding is being remanded to 
          consider the tenant's fair market rent adjustment application on the 
          merits as a timely application filed prior to April 1, 1984.  All 
          parties are to be notified and given a chance to submit evidence in 
          such remanded proceeding.

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

               ORDERED, that this petition for administrative review be, and 
          the same hereby is, granted to the extent of remanding this 
          proceeding to the Rent Administrator for further processing in 
          accordance with this order and opinion.  The automatic stay of so 
          much of the 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 adjustments pursuant to lease 
          renewals, until the Administrator issues a new order upon remand. 

          ISSUED



                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner





                     






















          EG420236RT
















    

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