DOCKET NO.:  EF930201RO
                                            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   SJR 6825
      IN THE MATTER OF THE ADMINISTRATIVE   :   ADMINISTRATIVE REVIEW
      APPEAL OF                                 DOCKET NO. EF930201RO
                                            :   DISTRICT RENT ADMINISTRATOR'S
           HANS MIDDLEBURG                      DOCKET NO. FEC920066AN   
                             PETITIONER     :                
      --------------------------------------X 


             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      Said increases was revoked by order #FDC820021AN dated November 14, 1989 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 
      1974.

      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 
      remedies.

      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.

      ISSUED:


                                                                                
                                                      JOSEPH A. D'AGOSTA
                                                      Deputy Commissioner

       

    

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