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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. EG420236RT
: DRO DOCKET NO.BJ410027RP
ROBIN DANAR
PETITIONER :
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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.
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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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