EL 510146-RT
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.:
EL 510146-RT
HERNAN SANTA,
DRO DOCKET NO.:
PETITIONER CB 510165-R
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 4, 1990 the above-named petitioner-tenant refiled a
Petition for Administrative Review against an order issued on
September 7, 1990 by a Rent Administrator concerning housing
accommodations known as Apartment 1-B at 19 Vermilyea Avenue, New
York, New York, wherein the Rent Administrator determined that
the tenant had not been overcharged.
The Commissioner has reviewed the record and carefully considered
that portion of the record relevant to the issues raised by this
administrative appeal.
This proceeding was originally commenced by the filing of a rent
overcharge complaint by the tenant on February 2, 1988.
The tenant took occupancy pursuant to a three-year lease com-
mencing March 2, 1983, and expiring January 31, 1986, at a
monthly rent of $370.70. The complaint also stated that the
previous tenant was under rent control at a much lower rent.
The owner was served with a copy of the complaint and was
directed to submit a complete rent history from the base date,
including copies of all leases. The owner complied with this
request. The owner also submitted a copy of the initial rent
registration for April 1, 1984, with an affidavit of proof of
service on the tenant. The section of the registration for
listing the prior controlled rent was left blank.
In Order No. CB-510165-R issued on September 7, 1990, the Rent
Administrator determined that the initial legal registered rent
of $370.70 had been lawfully increased to $420.46 in accordance
with the orders of the Rent Guidelines Board, and that there were
no overcharges of the tenant's rent.
In his petition, dated December 4, 1990, the tenant restates his
challenge to the initial rent of $370.00 per month, because the
landlord failed to inform him of the amount of rent paid by the
rent-controlled tenant. The petitioner also contends that he was
never served with the initial registration notice in 1984. The
tenant maintains that the only form he ever received was the
landlord's Report of Statutory Decontrol, which did not state the
rent-controlled tenant's rent.
The Commissioner is of the opinion that this petition should be
denied.
The record establishes that the tenant had been sent a copy of
the initial registration statement in accordance with procedures
adopted and promulgated by the DHCR. Although the tenant denies
receiving it, the owner has submitted documentation of service on
the tenant of the subject-building that has been deemed by the
Commissioner as acceptable proof of service, in accordance with
Section 2528.2(d) of the current Rent Stabilization Code.
Furthermore, since the tenant failed to challenge the initial
legal registered rent within 90 days of its mailing to him, such
failure is sufficient under the requirements of Section 2526 to
preclude any further challenge of that rent.
The tenant contends that in spite of the delay, he is required by
law to be notified of the rent immediately prior to the date of
statutory decontrol. The owner's copy of the initial registration
left this section blank. In effect, the tenant contends that his
right to a fair market rent appeal must still be valid.
Prior to 1983, the Rent Stabilization Law and Code provided that
when the first stabilized tenant took occupancy of an apartment
following decontrol from rent control by virtue of a vacancy, the
owner was required to notify the decontrolling tenant "on forms
prescribed by the CAB [Conciliation and Appeals Board]" of the
new tenant's right to file a fair market rent appeal within
ninety days. The DC-2 notice form prescribed by the CAB asked the
owner to set forth the applicable maximum rent (MBR) under Rent
Control, but no provision of the RSL or Code required the owner
to supply such information.
These circumstances were specifically recognized in the Omnibus
Housing Act (Section 15 of Chapter 403 of the Laws of 1983) by
the addition of a new Section 26-517 (formerly YY51-.6.0.6),
requiring an owner to register all stabilized apartments with the
DHCR. Paragraph (c) therein provides that for units which were
subject to Rent Control immediately prior to the date of initial
registration, in addition to the items required in all
registrations, the owner must state the maximum base rent
immediately prior to the date the housing accommodations became
subject to the Rent Stabilization Law. Nevertheless, paragraph
(e) of Section 26-513 (formerly YY51-.6.0.2) unambiguously
declares that: "Notwithstanding any contrary provision in this
law an application for adjustment pursuant to this section must
be filed within ninety days from the initial registration. This
subdivision shall not extend any other time limitations imposed
by this law."
In this petition, the tenant contends that the owner failed to
advise him by any means of the immediately prior maximum rent
(MBR) under Rent Control. The tenant raised that issue in the
complaint by claiming his initial rent was excessive because the
apartment had previously been under Rent Control. However, the
initial registration statement duly informed the tenant that a
challenge to the initial rent for any reason is limited to ninety
days. The tenant does not explain how he discovered that he was
being overcharged so that he now chooses to exercise a right that
he chose to ignore when he was first notified of it four years
earlier. The tenant was aware of the situation even before that,
since he also encloses the R-42, dated March 30, 1983, which
stated that he was the first tenant after the decontrol of the
apartment. The mere fact that the MBR was omitted from the
initial registration notice cannot override the stated intent of
the RSL to limit fair market rent appeals to within ninety days
of the certified delivery of the registration on the tenant.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied
and that the Rent Administator's order be, and the same hereby
is, affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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