Docket Number: EH 410162-RT
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 : SJR 5674 (Deemed Denial)
APPEAL OF ADMINISTRATIVE REVIEW
DOCKET NO.: EH 410162-RT
DEIDRE ASKA, :
DRO DOCKET NO.: ZBK-410616-R
PETITIONER : OWNER: DULEFF REALTY CO.INC.
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ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
On August 10, 1990, the above named petitioner-tenant filed a
Petition for Administrative Review against an order issued on July
6, 1990 by the Rent Administrator, 92-31 Union Hall Street, Jamaica,
New York concerning the housing accommodations known as Apartment 7R
at 20 East 67th Street, New York, New York wherein the Rent
Administrator determined that the owner had not overcharged the
tenant.
Subsequent thereto, the petitioner-tenant filed a petition in the
Supreme Court pursuant to Article 78 of the Civil Practice Law and
Rules requesting that the "deemed denial" of her Petition for
Administrative Review be annulled. The proceeding was remitted to
the DHCR, and the tenant's petition is herein decided on the merits.
The issue in this appeal is whether the Rent Administrator's order
was warranted.
The applicable sections of the Law are Section 26-517(c) of the Rent
Stabilization Law and Sections 2521.1, 2522.3(a), 2523.1 and 2528.2
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 originally commenced by the filing in November,
1987 of a rent overcharge complaint by the tenant, in which she
stated that she had commenced occupancy on June 1, 1985 at a rent of
$1,900.00 per month. She also claimed that the purported prior
tenant was actually a real estate broker with a primary residence
elsewhere; that a business associate of the tenant's husband claimed
to have been offered $5,000.00 to sign on to the lease; that other
tenants in the building claimed that no one had lived in the subject
Docket Number: EH 410162-RT
apartment after the rent-controlled tenants died; that she wrote the
DHCR in 1985 to get copies of the rent registrations; that she was
informed that it had never been registered; and that she is
apparently the first rent stabilized tenant.
In answer, the owner contended in substance that the subject
apartment was vacant on April 1, 1984 due to the death of the
tenant; that the apartment was rented to Gary D., the first
stabilized tenant, on or about December 1, 1984, at a rent of
$2,100.00; that he paid that rent until he terminated the lease
several months later; that he was served with the 1984 registration;
that the apartment was vacant on April 1, 1985 and duly registered
as such; that the complainant commenced occupancy in May, 1985; that
she did not file an overcharge complaint until November 30, 1987;
that she is time-barred from filing a fair market rent appeal as she
did not do so within 90 days after the initial registration or even
within 90 days of receiving the 1986 registrations; and that the
allegation that a business associate of her husband was offered
$5,000.00 to sign onto the lease was both irrelevant and false.
With its answer the owner enclosed a copy of a registration dated
December 14, 1984 showing Gary D. as having a lease commencing
December 1, 1984 for $2,100.00 per month, and a certification by the
Rent Stabilization Association that it had mailed the RR-1 tenant
notification forms on July 21, 1984. (The registration was Exhibit
A in one copy of the answer, and the certification was Exhibit A in
the other copy, although the owner apparently meant to enclose both
pages with both answers.) The owner did not enclose a copy of Gary
D.'s lease, although claiming to do so.
On July 6, 1990, the Rent Administrator issued an order finding no
overcharge, on the basis that the owner had registered that April 1,
1984 rent of $2,100.00 and served the first stabilized tenant with a
copy of the Apartment Registration Form as required, and that the
complainant's current rent of $2,071.00 represented a lawful
increase over the Initial Legal Registered Rent of $1,900.00.
In this petition, the tenant contends in substance that her
overcharge complaint made sufficiently clear that she was
questioning whether she was the first stabilized tenant, and whether
there had actually been an alleged former stabilized tenant who had
been properly served with the Initial Apartment Registration; that
an investigation should have been made; that the copy of the owner's
answer sent to the tenant by the DHCR did not contain the alleged
1984 registration nor the alleged certificate of mailing; that she
has spoken to 4 tenants in the 12-unit building; that none of them
recall anyone residing in the subject apartment before her, other
than the rent-controlled tenant; that she will submit their
statements in a later supplement; that no one resided in the subject
apartment on the date the RR-1 form was allegedly served; that the
90-day period to file a fair market rent appeal has never started to
run; that even if the occupancy of Gary D. could be established, he
was a real estate agent who may have colluded with the owner to
Docket Number: EH 410162-RT
establish a stabilized rent which could not be challenged; that he
could therefore not be considered to have been a legitimate
stabilized tenant with a right to file a challenge to the initial
registration; that even if he actually occupied the apartment it is
unclear if he remained in occupancy for the required 90 days after
receiving the RR-1 form; that the owner admittedly did not not serve
the initial apartment registration by certified mail as required by
Section 2523.1 of the Rent Stabilization Code; and that the owner
did not file the required copy of the RR-1 form with the DHCR, as
evidenced by a computer printout from the DHCR Registration Unit.
With her petition the tenant has enclosed a November 27th [1987?]
DHCR computer printout showing that the subject apartment had not
been registered for 1984 as of that time, a February 18, 1986 letter
from the Special Services Coordinator of the DHCR's Office of Rent
Administration advising that the apartment had not been registered,
and a photograph of a professionally-printed "Store For Rent" sign
listing Gary D. as the person to contact.
In answer, the owner asserts in substance that the tenant's petition
is untimely; that the tenant has neither verified nor affirmed her
petition as required; that the tenant did not date or swear to the
petition on a date certain as required; that the tenant's original
complaint was untimely; and that the owner should be given an
opportunity to respond to the substance of the tenant's petition if
it is determined that the tenant's petition was not time-barred.
The tenant subsequently sent a copy of a mailing receipt showing
that her petition was timely. A copy of this was sent to the owner
on November 16, 1990, but the owner has not made any later
submissions.
The Commissioner is of the opinion that this proceeding should be
remanded to the Rent Administrator.
Section 2522.3 of the Rent Stabilization Code provides for an appeal
of the Initial Legal Regulated Rent in a Fair Market Rent Appeal.
The right to make a Fair Market Rent Appeal is limited, in the
situation (such as the present one) where there were no rent
stabilized tenancies prior to April 1, 1984, to the first tenant to
be properly served with an apartment registration (Form RR-1). The
Administrator did not treat the complainant's complaint as a Fair
Market Rent Appeal, since the owner had claimed that she was the
second stabilized tenant and that the first stabilized tenant had
been properly served. However, the record did not contain
sufficient evidence that the alleged initial stabilized tenant had
been properly served in such a manner as to cut off the
complainant's right to file a Fair Market Rent Appeal. The
certification by the Rent Stabilization Association that it had
mailed RR-1 forms to tenants on July 21, 1984 did not prove proper
service since there was no apartment list on the certification
enclosed by the owner, and because such July 21, 1984 mailing could
not have gone to a tenant whose purported tenancy did not commence
until December 1st and where the owner did not even date the RR-1
form until December 14th. In addition, the owner did not submit a
Docket Number: EH 410162-RT
lease for Gary D. although claiming to do so, and the tenant
questioned whether there had been a legitimate tenancy. These
factors necessitate an inquiry into the factual question of whether
there was a properly-served legitimate initial stabilized tenant,
since the evidence in the record does not show that an RR-1
Registration was served on any prior tenant in a manner effective to
commence the running of the 90-day period during which to file a
fair market rent appeal. Because the tenant herein was never
notified that she was entitled to file a fair market rent appeal,
the 90-day period has never started running for her either. It does
not matter that she might have been served with annual registration
statements since she would have had no reason, and no right, to file
a fair market rent appeal if there had been, as implicitly claimed
by the owner on the 1985 registration (possibly) sent to the tenant,
a properly-served legitimate initial stabilized tenant. The
tenant's complaint that her initial rent was in excess of the lawful
stabilized rent is therefore in essence a fair market rent appeal,
and this proceeding is being remanded for processing as such.
Upon remand an inquiry should also be made into the purported
tenancy of Gary D. If it is found that the owner colluded in an
illusory tenancy in an attempt to evade the Rent Stabilization Law
and Code, appropriate penalties should be imposed.
While the owner is correct that the tenant was required to verify or
affirm her petition, she did sign it, and the fact that she did not
check either the "Verification" or "Affirmation" boxes means that,
absent a notary's signature, she is considered to have affirmed her
petition. While Section 2529.3 of the Code requires that a petition
be verified or affirmed, it does not require that it be dated. The
lack of a date is not a fatal defect, particularly since the tenant
submitted proof that the petition was timely filed.
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 Rent Administrator
for further processing in accordance with this Order and Opinion.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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