ADM. REVIEW DOCKET NOS.: EL130216RO, EK120265RT
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
APPEALS OF DOCKET NOS.: EL130216RO,
EK120265RT
Y. ZEVZAL REALTY ASSOC. C/O
ROSENBERG & ESTIS, P.C., (OWNER) DISTRICT RENT
AND NATHANIEL ALTMAN (TENANT) ADMINISTRATOR'S DOCKET
NO.: DE120043BO
(7MD06304Q)
PETITIONERS
------------------------------------X
ORDER AND OPINION REMANDING PROCEEDING
The above-named owner and tenant filed timely petitions for
administrative review of an order issued concerning the housing
accommodations known as 68-37 Yellowstone Blvd., Apt. C11 et al.,
Forest Hills, 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 petitions.
The issue before the Commissioner is whether the
Administrator's order was correct.
The Administrator's order being appealed, DE120043BO was
issued on November 9, 1990. In that order, the Administrator
revoked the finding of 7MD06304Q issued April 21, 1989, that the
owner be denied eligibility for a 1986/87 Maximum Base Rent (MBR)
increase. In consideration of the owner's challenge of the
previous order, the Administrator determined that contrary to the
finding in that order the owner had timely submitted an Affidavit
of Service of the Final Order of Eligibility upon the affected
tenants, said order having been issued by the Administrator on
September 30, 1988 (mailing date June 29, 1988), under the docket
#7M06304Q granting the owner eligibility to raise 1986/87 MBRs at
the subject premises. As proof of its contentions of timely filing
and of notification of the tenants, the owner had submitted with
its challenge to the Administrator a list of tenants' signatures
ADM. REVIEW DOCKET NOS.: EL130216RO, EK120265RT
acknowledging receipt of the order. All of the signatures were
accompanied by the tenant's apartment #, and most had been dated.
Those signatures that had been dated were dated during August,
1988.
In its appeal, the owner (Y. Zevzal Realty) raises strictly
technical grounds in opposition to the Administrator's order under
review herein. The owner states that the language of the order
that reads:
"Landlord submitted affidavit....
Order of Eligibility issued April
21, 1989 hereby is restored (emphasis added)...
Therefore it is ordered that the ...order issued
on April 21, 1989...is revoked (emphasis added.)"
should instead restore the order of eligibility issued on September
30, 1988. The owner requests that the Administrator amend its order
#DE120043BO accordingly.
The petitioner-tenant in this appeal also cites the language
of the Administrator's order. The tenant then proceeds to appeal
the order on more substantive grounds.
The tenant contends on appeal that he was never served by the
owner with order #7M06304Q during August 1988 (or any other time
thereafter). The tenant's appeal is accompanied by affidavits from
other tenants of the subject premises. Each affiant testifies that
they were,similarly never served by the owner.
An examination of the list of tenants' signatures submitted by
the owner reveals that the petitioner-tenant, as well as other
tenants who submitted the above-described affidavits also signed
the list submitted by the owner in its challenge. The tenant
contends that the list, relied on by the Administrator in finding
that the owner had timely served the tenants is a forgery. The
tenant refers to several physical features of the list to "prove"
his contention.
The Commissioner is the opinion that the allegedly confusing
language cited by both the owner and tenant on appeal is the result
of a clerical error. A thorough reading of the record persuades
the Commissioner that the Administrator intended to revoke the
April 21, 1989 order. The Commissioner notes that 7M06304Q stated
that the owner was eligible for 1986/87 MBR increases, subject to
inter alia its service of the Affidavit of Service upon the
Administrator.
7MD06304Q specifically stated that the owner had not made such
service. Under DE120043BO the Administrator stated that "Landlord
ADM. REVIEW DOCKET NOS.: EL130216RO, EK120265RT
submitted affidavit stating all affected tenants were served."
The Commissioner is thus of the opinion that the language of
this order can be read by a reasonable person as restoring the
order of eligibility issued September 30, 1988 and revoking the
order denying eligibility issued April 21, 1989.
The tenant complained of fraud in the owner's conduct. This
allegation of fraud was made for the first time on appeal. Due to
the nature of the MBR process in general and of this proceeding in
particular, the Commissioner is of the opinion that the tenant did
not have an opportunity to allege fraud below, and that the
Administrator was therefore not in error by not considering an
allegation of fraud when making its finding.
The Commissioner is of the opinion that the owner's petition,
filed with the Commissioner under docket # EL130216RO should be
remanded. The Administrator is directed to hold hearings, if
necessary, to aid in its determination. If the Administrator
concludes that the owner did act fraudulently and that the tenant
was never served, the Administrator is directed to affirm the order
of April 21, 1989 issued under docket #7MD06304Q, that the owner
failed to timely serve the order of eligibility issued on September
30, 1988 upon the affected tenants and to thus deny the owner's
eligibility for a 1986/87 MBR increase at the subject premises.
Upon such a finding of no eligibility, the Administrator is
directed to order the owner to make the appropriate refunds of
excess rent payment to tenants, and to adjust subsequent rent
schedules accordingly.
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations, it is
ORDERED, that these petitions for administrative review be,
and the same hereby are, remanded to the Administrator.
ISSUED:
LULA M. ANDERSON
Deputy Commissioner
|
