DOCKET NO.: EC230335RO
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
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IN THE MATTER OF THE ADMINISTRATIVE :
APPEAL OF ADMINISTRATIVE REVIEW
: DOCKET NO. EC230335RO
DONALD R. FRIED, DRO DOCKET NO. BH221841FR
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On March 30, 1990 the above named petitioner-landlord filed an appeal in
accordance with the applicable provisions of the City Rent Law and
Regulations against an order issued on March 13, 1990 by the Rent
Administrator of the Gertz Plaza, Jamaica, New York, Rent Office, concerning
housing accommodations known as 371 Atlantic Avenue, Brooklyn, New York,
various apts.
The issue in this proceeding is whether Fuel Cost Adjustments should have
been suspended for the calendar year 1987.
The Rent Administrator's order appealed herein suspended all fuel cost
adjustments for the period January 1, 1987 through December 31, 1987.
This order was based upon a finding that the owner of the subject building
had previously obtained allowable fuel cost adjustments and failed to timely
serve and file the required report of fuel cost decrease by reason of a
decrease in the price of #2 oil during the calendar year 1986.
On appeal, the landlord states, in substance, that the "Last Fuel Cost
adjustment granted to landlord was a 1980 adjustment granted in 1983 and the
"tenants rents have not increased since 1983."
After a careful consideration of the entire evidence of record the
Commissioner is of the opinion that the administrative appeal should be
denied.
9 NYCRR 2202.13 provides that where a landlord has obtained fuel cost
adjustments and then there is a finding of fuel price decrease, within 60
days of the promulgation of the finding on fuel prices, the landlord must
serve and file a report of fuel price decrease.
In early 1987, a finding was promulgated that the price of #2 fuel oil had
declined during 1986. The subject landlord was required to file and serve
fuel cost decrease reports on or before July 31, 1987.
DOCKET NO.: EC230335RO
In this matter it is undisputed that a "Landlord's Report, Certification and
Notice of Fuel Cost Adjustment Eligibility - 1987" was not received by the
Rent Office on or before July 31, 1987. The landlord's allegation that no
rent increase had been passed along to the tenant(s) in the immediately
previous years is irrelevant. Section 2202.13e merely requires that the
owner had obtained one or more fuel increases in the past. It is not
necessary that one must have been obtained in the immediate prior years.
However, it is implied in the Administrator's order that if no Fuel Cost
Adjustments were collected in 1987 then no refund was required. Similarly,
if only the 1980 FCA was collected in 1987, only it would have to be
refunded. Furthermore, the Commissioner notes that the owner alleges on
appeal that he only acquired the building in 1988. If the prior owner
collected Fuel Cost Adjustments in 1987, the petitioner would still be
obligated to refund the FCA's collected. Nevertheless, this order is without
prejudice to the petitioner's right to proceed against the prior owner in a
court of competent jurisdiction.
The Commissioner is of the opinion the Rent Administrator correctly suspended
Fuel Cost Adjustments for the calendar year 1987.
THEREFORE, in accordance with the applicable provisions of the Rent and
Eviction Regulations for New York City, it is
ORDERED, that this administrative appeal 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
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