DHCR Decisions          Docket No. EB430237RO                                    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.: EB420327RO                                                              DISTRICT RENT          Walter M. Eberhart, Jr.                 ADMINISTRATOR'S DOCKET                                                  NO.: DE420005BO(7M04282M)                                             PETITIONER          ------------------------------------X            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 33 East 96th street, Apartments 4RE & 5FE,          New York, 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, DE420005BO was issued          on January 12, 1990.  In that order, the Administrator affirmed the          finding of 7MD04282M issued April 29, 1989, that the owner be          denied eligibility for a 1986/87 Maximum Base Rent (MBR) increase,          due to the owner's failure to timely submit to the Administrator an          Affidavit of Service testifying to the owner's timely service of a          previous permanent order of eligibility to increase 1986/87 MBRs,          said permanent order issued under the Docket # 7M04282M, which was          issued and mailed to the owner on June 29, 1988, at the address          indicated by the owner in his appeal.  On the face of that order          the owner was explicitly given a 60-day deadline in which to serve          the affected tenants with a notice of eligibility.  On January 20,          1989 (well after the statutory 60 day service period had expired)          the Administrator sent notice to the owner that it had not yet been          served with the Affidavit of his service of the previously          mentioned order of eligibility upon the affected tenants.  The          owner never responded to that notice.  On April 28, 1989 the          Administrator issued, under Docket #7MD04282M a Final order denying          the 1986/87 MBR on the basis of the owner's failure to answer the          Docket No. EB430237RO          January 20, 1989 notice.  The proceedings culminating in the          issuance of the order being appealed herein (DE420005BO) were          commenced upon the owner's filing of a challenge to 7MD04282M.              Upon appeal, the owner claims that he "never received the final          order of eligibility issued January 20, 1989" and that by          indicating various issue dates on the various orders issued          throughout the 1986/87 MBR proceeding the Administrator indicates          "inconsistency" and "confusion in D.H.C.R."                The Commissioner is of the opinion that this petition should be          denied.              In the extensive recap of the history of this proceeding, the          Commissioner has explained the use of the various dates in the          various orders.              The Commissioner notes that the owner states on appeal that he          never received the "order of eligibility issued January 20, 1989".            An examination of the record reveals that the owner also made this          allegation in the challenge proceeding below.  The Commissioner          notes that, on January 20, 1989 the Administrator did not serve the          owner with an order of any type, but rather with a letter notifying          the owner that the Administrator had not yet received an Affidavit          of Service concerning the order of eligibility the owner had          received on June 29, 1988, and giving the owner 20 more days in          which to serve such an Affidavit upon the Administrator.  The          Commissioner further notes that nowhere in this proceeding does the          owner deny that he received the June 29, 1988 order of eligibility.              All orders and other papers served upon the owner were          addressed to the owner at the owner's proper address as given by          the owner in his petition.  There is no other indication in the          file that any mail was sent to an incorrect address by the          Administrator,  nor is there any evidence that any documents          allegedly mailed to the owner by the Administrator were not so          addressed.              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