ADM. REVIEW DOCKET NO.: EK430158RO
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.: EK430158RO
304 W. REALTY CO. BY THE ARGO CORP.
C/O ROSENBERG & ESTIS, P.C. BY DISTRICT RENT
BLAINE Z. SCHWADEL, ESQ. ADMINISTRATOR'S DOCKET
NO.: DE420093BO(7MD07914M)
PETITIONER
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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 known as 304 West 75th Street, Various Apartments,
New York, New York.
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, DE420093BO was
issued on October 19, 1990. In that order, the Administrator
affirmed the finding of 7MD07914M issued May 12, 1989, that the
owner be denied eligibility for a 1986/87 Maximum Base Rent (MBR)_
increase, due to the owner's failure to timely submit to the
Administrator an Affidavit of service, said Affidavit testifying
that the owner had served upon the affected tenants notice of its
eligibility to collect 1986/87 MBR increases.
On appeal, the owner argues that the Administrator's order is
in error, inasmuch as, that the owner had never received a copy of
the order of eligibility. The owner also charges that the
D.H.C.R., by the order under appeal "exalts form over substance."
The Commissioner is of the opinion that this petition should
be denied.
ADM. REVIEW DOCKET NO.: EK430158RO
On October 20, 1986, under docket #7MI07914M the Administrator
granted the owner interim eligibility to raise the 1986/87 MBRs at
the subject premises. This eligibility was granted on a
conditional basis. One of those conditions was service of the
order upon the affected tenants. As the owner did not serve the
order upon the tenants (the affidavit of service would certify
same), the Commissioner is of the opinion that the Administrator
was correct in denying owner's eligibility for a 1986/87 MBR
increase at the subject premises.
On appeal, and at Challenge below, the owner has sought to
prove its timely receipt and service of the October 20, 1986
interim order. This matter is not at issue in the instant
proceeding. At issue is whether or not the owner timely received
the Administrator's Order of Eligibility #7M07914M, issued by the
Administrator on September 30, 1988, (mailing date June 29, 1988),
said order granting the owner eligibility to raise 1986/87 MBRs at
the subject premises, subject to the owner's timely serving of the
order upon the affected tenants at the subject premises.
The owner has not presented any proof either before the
Commissioner or before the Administrator that it did not receive
the September 20, 1988 order on a timely basis, nor that it
received the order for the first time on a later date. An
examination of the file reveals that the September 30, 1988 order
was addressed to the owner at its address of record as of both the
mailing and issue dates.
As for owner's argument on appeal that the Administrator's
order "exalts form over substance": The purpose of service of
owner's eligibility to raise MBRs allows tenants the opportunity to
learn of the basis of their rent increase and to thus challenge its
correctness, if necessary. D.H.C.R. administers rent regulations
in New York City pursuant to legislation. Although this
legislation does not specify each detail of the D.H.C.R.'s
responsibilities (i.e., the 60 day service period), the legislation
does give the D.H.C.R. authority to enact and enforce various
procedural rules to aid it in the administration and enforcement of
rent regulation rules and policy. The D.H.C.R.'s authority to
enact such procedures has been supported by various court
decisions.
The Commissioner is therefore of the opinion that inasmuch as
the September 30, 1988 order granted eligibility to raise MBRs
subject to the timely service of this order upon the affected
tenants, and that the owner has admittedly failed to make such
timely service, and that the owner has alternatively failed to
prove late mailing of the order by the DHCR or rebut the
ADM. REVIEW DOCKET NO.: EK430158RO
Commissioner's assumption of timely mailing by the DHCR, the
Administrator was correct and this petition should be denied.
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
Administrator be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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