DOCKET NO.: EF930201RO
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 6825
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. EF930201RO
: DISTRICT RENT ADMINISTRATOR'S
HANS MIDDLEBURG DOCKET NO. FEC920066AN
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
This Order and Opinion is issued pursuant to a order of the Supreme Court,
County of Westchester, Index Number 02972/93, dated March 19, 1993, which
ordered remit of an Article 78 Proceeding directing the Division to
reconsider its "deemed denial," upon which the court proceeding was based.
On May 31, 1990, the above named landlord's representative filed a petition
for administrative review of an order issued on May 4, 1990 by the District
Rent Administrator, White Plains, NY concerning the housing accommodations
known as various apartments, 490 Bleeker Avenue, Mamaroneck, NY.
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issues
raised by the administrative appeal.
This proceeding was commenced by the subject owner filing a landlord's sixty
day Notice of Maximum Rent Adjustment dated February 28, 1989.
Based on said Notice the various state rent control tenants in the subject
building had their rent raised effective May 1, 1989.
Said increases was revoked by order #FDC820021AN dated November 14, 1989
which determined that the landlord's aforementioned sixty day notice of
maximum rent adjustment did not meet the requirements of the Regulations and
Operational Bulletin No. 110 to adjust the maximum rent.
Specifically the November 14, 1989 order determined that the tenants' rents
as raised exceeded the average of the Legal Regulated Rent for apartments
with the same numbers of rooms and services that are subject to the ETPA of
The owner failed to file either a Petition for Administrative Review (PAR)
or a Request for Reconsideration of the aforementioned order (FDG820021AN).
The owner instead filed a second Landlord's Sixty Day Notice of Maximum Rent
dated February 12, 1990. In the order here under review, the District Rent
DOCKET NO.: EF930201RO
Administrator, White Plains office determined (Docket #FEC920066AN) that the
landlord's notice was defective as the previous order issued November 14,
1989 and effective November 1, 1989 (Docket #FDC820021AN) remains in effect
for a two year period.
The landlord's petition alleges that the prior November 14, 1989 order was
issued as a result of irregularity in vital manner, and thus cannot provide
a basis for denying the Landlord's Sixty Day notice. The petition further
alleges that applicable regulations allow the agency to modify the
underlying order and that the regulations do not prohibit the filing of the
sixty day notice under the facts of the case.
After careful consideration, the Commissioner is of the opinion that the
landlord's petition should be denied.
The prior order #FDC820021AN dated November 14, 1989 discussed supra is a
final determination of the rent agency. The owner failed to submit either
a timely Petition for Administrative Review or even a request for
reconsideration of that order. These were his appropriate administrative
The petition has instead launched a collateral attack on a final order of
the agency by submitting a second application with new supporting documents
(revised rent roll) and then filing this subject PAR alleging irregularity
in a vital matter on the November 14, 1989 order.
Said irregularity is alleged by the petitioner's statement that he did not
discover that the rent roll he prepared, was in error, until after the
thirty-five day petition for administrative review deadline had passed.
The petitioner also alleged that the rent agency had an affirmative
obligation to look behind the owner's rent roll; by comparing it with prior
years' submissions (under other docket numbers) and advising the owner of
his mistake rather than rejecting his application.
A reading of the appropriate regulations reveals no such affirmative duty.
While the petitioner is correct in asserting that the agency has some
discretionary powers, a review of the record in full reviews no irregularity
in vital manners, or abuse of discretion in the issuance of either order by
the Rent Administrator.
The Administrator's May 4, 1990 order in this proceeding correctly noted
that the owner's second application was temporarily time barred, as there
already was a final order of the rent agency. Therefore the owner's petition
is an impermissible collateral attack of a final determination by the rent
agency. Accordingly, the Commissioner finds that the Administrator's May 4,
1990 order should be affirmed.
DOCKET NO.: EF930201RO
THEREFORE, in accordance with the State Rent and Eviction Regulations and
State Rent Control Laws, it is
ORDERED, that this petition be, and the same hereby is denied; and that the
District Rent Administrator's Order be, and the same hereby is affirmed.
JOSEPH A. D'AGOSTA