ADM. REVIEW DOCKET NO.: EK430306RO
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.: EK430306RO
DISTRICT RENT
PARCEL 242, INC. c/o ADMINISTRATOR'S DOCKET
ROSENBERG & ESTIS, P.C. by NO.: DF420033BO(7MD03202M)
BLAINE Z. SCHWADEL, ESQ.
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 242 East 72nd 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, DF420033BO was
issued on November 2, 1990. In that order, the Administrator
affirmed the finding of 7MD03202M issued May 5, 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. In that lower order,
the Administrator found specifically that the owner had failed to
timely submit an Affidavit of service (Affidavit) to the DHCR, said
Affidavit asserting that the affected tenants had been served with
Notice of the owner's eligibility to raise 1986/87 MBR at the
subject premises.
On appeal, the owner alleges that it did not timely serve the
Affidavit upon the tenants because the DHCR did not serve the order
of eligibility upon it on a timely basis. The owner claims that
Administrator's Order # 7M03202(7MI03202M) conditionally granting
ADM. REVIEW DOCKET NO.: EK430306RO
the owner eligibility to raise MBRs at the subject premises and
dated June 29, 1988 was not served upon the owner until February 1,
1989. The owner submits on appeal documentation vouching to the
owner's serving the tenants upon its "receipt" of the conditional
order of eligibility. The owner also claims that the Administrator
by its decision "exalts form over substance."
The Commissioner is of the opinion that this petition should
be denied.
On June 29, 1988, under docket # 7M03202 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.
An examination of the record below reveals that all papers
served upon the owner by the Administrator were properly addressed,
either to the owner or to the owner's counsel. The Commissioner is
of the opinion that the owner has thus failed to prove that it did
not receive the order when it was issued or, conversely that it
received the order for the first time in February 1989.
As for owner's arguments 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.
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.: EK430306RO
Administrator be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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