DHCR Decisions
Docket No. EA230390RO
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.: EA230390RO
DISTRICT RENT
M. Lob, Agent ADMINISTRATOR'S DOCKET
NO.: DJ220044BO(7M06965K)
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely petition for
administrative review of an order issued concerning the housing
accommodations known as 1031 Lorimer Street, Various Apartments,
Brooklyn, New York.
The Commissioner has reviewed all the evidence in the record
and has carefully considered that portion of the record relevant to
the issues raised by the petition.
The issue before the Commissioner is whether the
Administrator's order was correct.
The Administrator's order being appealed, DJ220044BO was on
December 22, 1989. In that order, the Administrator affirmed the
finding of 7M06965K issued September 29, 1989, that the owner be
denied eligibility for a 1986/87 Maximum Base Rent (MBR) increase,
due to the owner's failure to meet the violation certification
requirements necessary to the owner's being granted an MBR
increase, specifically, the owner's failure to timely submit
payment of the MBR Fee, as requested by the Administrator.
On appeal, the owner states that the payment was submitted to
the Administrator on a timely basis, but was apparently lost. The
owner encloses with its petition a check, #6910 for $100 (the
amount of the MBR Fee) made payable to "MBR Unit", said check dated
October 9, 1989. The owner states that this check is a replacement
for the "lost" check, and states that it was originally submitted
to the Administrator as part of a challenge to the Administrator's
order denying eligibility, issued on September 29, 1989.
The Commissioner is of the opinion that this petition should be
Docket No. EA230390RO
denied.
An examination of the record below reveals that at challenge
the owner first submitted check #6910, and also first put forth the
"lost check" argument subsequently made on appeal. (A photocopy of
check #6910 was attached to the challenge.) The Administrator
apparently returned the check to the owner, who now submits it to
the Commissioner on appeal, in on apparent attempt to pay the
liability and thus cure the defect that led to the Administrator's
denial of eligibility, and to affirmation of that denial upon the
challenge.
The Commissioner has returned check #6910 to the owner at its
last known address, and has affixed a photocopy of the check to the
owner's petition.
A petition for administrative review is the procedure by which
a petitioner alleges error of law or fact in the Administrator's
order below. It is not a "second chance" for the petitioner to
cure the defect that led to the Administrator's order under appeal.
In the instant proceeding the owner has not alleged error by
the Administrator. Neither in the challenge proceeding below nor
before the Commissioner has the owner sought to deny the veracity
of the Administrator's finding-namely that the Administrator
notified the owner that the MBR Fee was due and that the owner had
failed to respond to the Administrator's notice. Instead,
accompanying an unsubstantiated allegation that a check for the
MBR Fee had been sent to the Administrator but had apparently been
"lost", the owner sent "replacement" check #6910 to the
Administrator with its challenge. The Administrator mailed the
check back to the owner, who has now resubmitted the check to the
Commissioner on appeal.
The Commissioner is of the opinion that the owner's
undocumented and self-serving declaration on appeal is not
sufficient to overcome the Administrator's finding that the owner
failed to timely submit the MBR Fee.
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations, it is
ORDERED, that this petition for administrative review 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
Docket No. EA230390RO
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