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STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X SJR No. 6440
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. EE 410136 RO
: DISTRICT RENT OFFICE
Koppel Management, DOCKET NO. CH 410055 RP
TENANT: Marianne Strong
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 17, 1990, the above-named petitioner-owner refiled a petition
for administrative review of an order issued on December 13, 1989 by
a District Rent Administrator concerning the housing accommodations
known as 65 East 96th Street, New York, New York, Apartment No. 4B,
wherein the Administrator determined that the owner had collected
Subsequently, the owner filed a petition in the Supreme Court in the
nature of mandamus pursuant to Article 78 of the Civil Practice Law
and Rules for a judgment directing the DHCR to render a
determination of the petitioner's administrative appeal.
By stipulation dated July 24, 1992, the court proceeding was
withdrawn on condition that the Division of Housing and Community
Renewal (DHCR) render a determination of the owner's petition for
administrative review within 60 days of July 24, 1992.
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 on March 15, 1984 upon the
filing of a fair market rent appeal and an overcharge complaint.
Both complaints were processed under Docket No. L 3116435 RT.
On February 20, 1986, the Administrator issued an order under Docket
No. L 3116435 RT finding that the fair market rent appeal was not
filed within ninety days after receipt of the Initial Legal
Regulated Rent Notice. Accordingly, the fair market rent appeal was
rejected and the case was processed as an overcharge complaint. The
Administrator determined that an overcharge had occurred.
The tenant filed a petition for administrative review of the above
order under Docket No. ART 08939 L.
On August 5, 1988, the Commissioner granted the tenants' petition
for administrative review and ordered that this proceeding be
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remanded to a District Rent Administrator for reprocessing as a fair
market rent appeal.
On November 1, 1989, both parties were notified of the reopening of
the case pursuant to the Commissioner's order of remand. The case
was reprocessed under Docket No. CH 410055 RP.
In the order here under review, the Administrator found that the
owner had failed to furnish usable rent data required for
consideration of comparables. Accordingly, the fair market rent was
determined solely on the basis of the Special Fair Market Rent
Guidelines. The Administrator determined that the owner had
collected excess rents and security through October 31, 1989
In its petition for administrative review, the owner alleges that is
did not receive a copy of the Administrator's order until 44 days
after it was issued. As such, the owner asserts that its petition
for administrative review should be deemed timely. The owner
includes a copy of a misaddressed enveloped from DHCR to support its
claim. Further, the owner states that if its petition is deemed
timely, it reserves the right to supplement its petition.
In her answer to the petition for administrative review the tenant
asserts, among other things, that the owner has made no specific
objections to errors of fact or law in the Administrator's order.
After careful consideration, the Commissioner is of the opinion that
this petition should be denied.
The Commissioner finds that the owner has failed to state a cause of
action. It is not DHCR policy to issue interlocutory orders
regarding the timeliness of administrative appeals. It is well-
recognized that the proper administrative practice is for the
petitioner to address the merits of the case in the alternative in
a single pleading.
In this case, the record indicates that all notices, with the
exception of the Administrator's order (Docket No. CH 410055 RP)
were sent to the correct address. Yet the owner, in its petition
for administrative review makes no effort to explain its failure to
participate in the proceeding below. Further, in the twenty-seven
months from the date of filing this petition, DHCR has received no
supplemental pleadings which address the merits of this case.
Accordingly, even if this petition for administrative review were to
be declared timely, the Commissioner would be constrained to deny
the petition for its failure to cite objections to the
Administrator's order of December 13, 1989.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that this petition for administrative review be, and the
same hereby is, denied, and, that the Administrator's order be, and
the same hereby is, affirmed.
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JOSEPH A. D'AGOSTA
Acting Deputy Commissioner