ADM. REVIEW DOCKET NO.: EK420140RT
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 ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: EK420140RT
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: DD420027BO
CONSTANCE AND GLENN BARNES (7MD08390M)
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named tenants filed a timely petition for
administrative review of an order issued concerning the housing
accommodations known as 200 West 90th Street, Apt. 2G, New York,
N.Y.
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, DD420027BO was
issued on October 5, 1990. In that order, the Administrator
revoked the finding of 7MD08390M, 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 file an Affidavit of
Service (Affidavit) with the Administrator, said Affidavit being
evidence of the owner's service of the order of eligibility upon
the tenants affected by that order. In revoking that order, the
Administrator found that the owner had served the Administrator
with the Affidavit.
ADM. REVIEW DOCKET NO.: EK420140RT
On appeal, the tenants allege that the Administrator did not
have the authority to issue the order being appealed herein. The
tenants maintain that a prior order may be modified, superseded or
revoked (as in the instant proceeding) only when there is a finding
of fraud, illegality or irregularity in a vital manner. Inasmuch
as there was no such finding in the instant proceeding the
Administrator was thus in error in revoking the order denying the
owner eligibility.
The tenants alternatively allege that the Affidavit submitted
by the owner on appeal is "dubious and its authenticity is
doubtful." They thus request a "certified" copy of the order being
appealed herein.
The Commissioner is of the opinion that this petition should
be denied.
The tenants' contention re the Administrator's authority to
override previous orders is mistaken. Any party to an MBR
proceeding may, subject to certain limitations Challenge the order
of eligibility (as in the instant proceeding). The Commissioner is
of the opinion that if the tenants' argument on appeal was upheld
and that orders denying (or granting) eligibility were only
Challengeable upon an allegation of fraud, illegality, or
irregularity in a vital manner tenants, as well as owners would be
deprived of their right to answer assertions made by the adverse
party.
The Commissioner is of the opinion that the tenants'
contentions re the authenticity of the Affidavit are speculative,
and as such cannot be considered by the Commissioner on appeal.
On appeal, after making specific allegations concerning the
credibility of the Affidavit, the tenants in the next paragraph of
their appeal state that "the...Order (emphasis added) may be a
forgery and the tenant hereby requests a certified copy of the
...Order (emphasis added)."
The Commissioner is puzzled by this request by the tenant to
verify the authenticity of the Administrator's order under review
herein immediately after the tenants' questioning of the
authenticity of the Affidavit. The Commissioner advises the
tenants to file a FOIL (Freedom of Information Law) request with
this Agency. Upon the granting of such request by the
Administrator, the tenants will be free to examine the entire file.
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.: EK420140RT
Administrator be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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