EA 410078 RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: EA 410078 RO
Wavecrest Management Team, Ltd, DRO DOCKET NO.: 59316
TENANT: Mohamed Basha
ORDER AND OPINION REMANDING PROCEEDING TO THE ADMINISTRATOR
On January 9, 1990, the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on December 5, 1989,
by the Rent Administrator, Gertz Plaza, Jamaica,
New York, concerning the housing accommodations known as 930 St.
Nicholas Avenue, New York, New York, Apartment No. 28, wherein the Rent
Administrator determined that the owner had overcharged the tenant.
The issue herein is whether the Rent Administrator's order was
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 January 1986 by the filing
of a rent overcharge complaint by the tenant. The tenant took occupancy
pursuant to a lease commencing March 1, 1985 and expiring February 28,
1986 at a monthly rent of $450.00.
In Order Number 59316, the Rent Administrator determined the lawful
stabilized rent based upon the owner's failure to answer the tenant's
complaint; determined that the tenant had been overcharged in the amount
of $24,609.96, including treble damages; and directed the owner to
refund such overcharge to the tenant. The Administrator further
determined that the owner would not be entitled to any rent increases
until service of the initial apartment registration on the tenant.
In this petition, the owner contends in substance that there was no
default as it sent in an answer to the proceeding dated July 31, 1989 by
certified mail. The owner submitted a copy of a certified mail receipt
indicating mailing of this answer to the DHCR on July 31, 1989 and a
return receipt indicating receipt by the DHCR on August 3, 1989. The
owner's answer indicates that the tenant was the first tenant to occupy
the subject apartment following decontrol and that the owner filed an
initial registration (RR-1 form) with DHCR and served a copy upon the
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tenant. The owner's answer indicates that a copy of the initial
apartment registration was enclosed. The owner submits with its
petition a copy of the initial registration dated January 25, 1985 with
a signed acknowledgement that it was received by the tenant. The owner
also submits an affidavit from the prior managing agent stating that he
executed a lease with the tenant on January 25, 1985 and at that time
served the tenant with the RR-1 form, receipt of which was acknowledged
by the tenant on the owner's copy.
In answer to the owner's petition, the tenant contends that the
signature on the RR-1 form submitted by the owner is not his; that he
signed his lease in March, 1985, not January, 1985; and that the
Administrator's order is correct and should be affirmed.
In reply to the tenant's answer, the owner asserts that the tenant's
signature on the RR-1 is the same as on the lease, both of which were
signed on January 25, 1985. The owner notes that on line 11 of the
tenant's objection the tenant states the total number of rooms in the
apartment indicated on the initial registration as 5 rooms, which
information would have been derived from the registration form.
The Commissioner is of the opinion that this petition should be remanded
to the Administrator for further processing.
An examination of the records in this case discloses that the owner is
correct in its contention that it submitted an answer to the proceeding
which was apparently not received or considered by the Administrator.
This answer included a copy of the apartment registration form with the
alleged acknowledgement of receipt by the tenant. The tenant stated in
his objection and in answer to the owner's petition that he never
received the initial registration and denied that the signature on the
owner's copy of the form is his. It is noted that during the proceeding
before the Administrator the tenant submitted a copy of the initial
registration which is exactly the same as the owner's copy in all
respects except that it does not have the tenant's signed
acknowledgement. The Commissioner finds that there is a factual dispute
as to the issue of service of the initial registration form.
Accordingly, the Commissioner finds that the proceeding should be
remanded to the Administrator for further processing, including a
hearing, if warranted, to determine if the tenant was properly served
with the initial apartment registration. If the Administrator
determines that that registration form was served properly, the tenant's
complaint should be dismissed as untimely. If the Administrator
determines the registration statement was not served, the complaint
should the processed further and the owner should be given an
opportunity to prove the date of decontrol in order for the
Administrator to determine if the tenant's complaint should be processed
as a fair market rent appeal or as an overcharge complaint.
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
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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.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner