ADM. REVIEW DOCKET NO.: EA220315RO
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.: EA220315RO
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: DJ220037BO (7MD04165K)
TIME EQUITIES, INC.
PETITIONER PREMISES: 325 Clinton
Avenue, various apartments,
------------------------------------X Brooklyn, N.Y.
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 described above.
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, DJ220037BO was
issued on December 22, 1989. In that order, the Administrator
affirmed the finding of 7MD04165K issued April 21, 1989, that the
owner be denied eligibility for a 1986/87 Maximum Base Rent (MBR)
increase, due to the owner's failure to serve the Administrator
with an Affidavit of Service of the owner's eligibility to raise
the 1986/87 MBR upon the affected tenants of the subject premises.
On appeal the owner contends that the Administrator's order is
invalid, since the Administrator's Final Order of Eligibility,
which was affirmed by DJ220037BO, was issued on October 4, 1989
under the Docket Number 7M04165K, revoked the owner's eligibility
on the grounds that the owner failed to respond to a delinquent
1986/87 MBR fee Notice mailed to the owner by the Administrator,
and that the first notice the owner saw of the Affidavit of Service
Issue was when it received DJ220037BO. The owner submits a copy of
7M04165K as evidence of its contention.
ADM. REVIEW DOCKET NO.: EA220315RO
The Commissioner is of the opinion that this petition should
be denied.
The Commissioner notes that the Administrator, in DJ220037BO
explicitly affirmed The Final Order Denying 1986/87 MBRs issued on
April 21,1989 under Docket Number 7MD04165K. In both orders, the
reason for denial of MBRs is given as the owner's failure to submit
an Affidavit of Service upon either the Administrator or the
affected tenants. However, as stated above, the owner submits a
copy of another Final Order Denying 1986/87 MBRs. This order,
issued on October 4, 1989 under Docket Number 7M04165K, denies
eligibility to the owner based upon the owner's failure to respond
to a delinquent 1986/87 MBR Fee Revenue Notice served upon the
owner by the Administrator.
An examination of the record reveals that both issues (failure
to submit an Affidavit of Service and failure to submit the Fee
Revenue Notice) were discussed in the proceeding below. The
Commissioner notes that the owner, in both the Challenge proceeding
below and in the instant proceeding on appeal responded to the Fee
Revenue Notice contention by supplying evidence indicating timely
filing and payment. The Commissioner further notes that the Fee
Revenue Notice issue was not subsequently raised by the
Administrator, either in the order under review herein (DJ220037BO)
nor in any other proceeding. The Commissioner is therefore of the
opinion that the issue of timely payment of the MBR fee has been
settled in favor of the owner.
As for the Affidavit of Service issue, the Commissioner notes
that a letter requesting service of the above-mentioned Affidavit
was submitted to the owner at the correct address on January 6,
1989 and that the owner never responded to this request. There is
no evidence in the record suggesting that the owner never received
this letter nor does the owner make this argument on appeal.
Rather, the owner on appeal seems to disregard the existence of the
Administrator's Final Order which denied the MBR due to the
Affidavit of Service Issue. The Commissioner notes that the
Administrator's request for an Affidavit of Service was mailed to
the owner on January 6, 1989 well over three months before the
issuance of the Administrator's Final Order. The Commissioner
further notes that the owner did not argue, at Challenge or on
appeal that it had timely filed an Affidavit of Service.
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
ADM. REVIEW DOCKET NO.: EA220315RO
Administrator be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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