FC 130120 RO
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 S.J.R. 5916
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FC 130120 RO
MACNISH ASSOCIATES C/O
ROBERT E. HERMAN, ATTORNEY AT LAW, DRO DOCKET NO.: ZDK 110243 OM
PETITIONER
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ORDER AND OPINION DENYING ADMINISTRATIVE APPEAL
This order and opinion is issued pursuant to an order of Justice
Robert T. Groh of the Supreme Court, Queens County, Remanding an
Article 78 proceeding and directing the Division of Housing and
Community Renewal (DHCR) to issue a determination of the owner's
administrative appeal herein.
The owner of the subject premises (Located at 84-16 Elmhurst
Avenue and 44-05/10/11/16/21/25 Macnish Street, Elmhurst, New
York) initiated the proceeding below by filing with the District
Rent Administrator an application for Major Capital Improvement
(MCI) rent increases for the stabilized apartments in the
premises based on the installation of new windows in March of
1987. The record discloses a letter from the petitioner (dated
November, 1989), which stated that the owner's MCI application
was being submitted as a refiling of a prior application
allegedly lost by the DHCR. The petitioner stated that the prior
application was filed on April 2, 1987, and submitted an
affidavit from the owner's employee stating that the employee
personally delivered two copies of an MCI application to the DHCR
on April 2, 1987, and that the owner's copy was date and time
stamped. Subsequently, in January of 1991, the petitioner
submitted to the Administrator a copy of Form RA-79 N (Notice to
Tenant of Commencement of MCI Proceeding), which is date stamped
April 2, 1987 but is not identified by a docket number.
The District Rent Administrator's order, appealed herein, denied
the owner's application, stating that the owner failed to file
the application within two years from the completion date of
installation.
This order was based upon the owner's failure to provide adequate
and substantial proof that the owner was re-filing an application
submitted on April 2, 1987.
On appeal, the petitioner-owner contends, in substance, that:
(A) The owner's MCI application was filed with
FC 130120 RO
the DHCR by hand delivery on April 2, 1987
and the owner's copy of the application was
date stamped to that effect;
(B) Upon receiving no response to the original
filing, the owner re-filed the application by
certified mail in November of 1989, at which
time it submitted the employee affidavit; and
(C) The Administrator's determination was
contrary to the evidence on record.
In response to the owner's petition, various tenants filed
answers stating, among other things, that since the owner's
application was stamped received by DHCR on May 4, 1990, and is
dated September 15, 1989, the owner's application was filed more
than two years after the completion of the window installation.
After a careful consideration of the entire evidence of record
the Commissioner is of the opinion that the administrative appeal
should be denied.
The Commissioner notes at the outset that the records of this
Division indicate that the subject MCI application was filed on
November 27, 1989. In addition, the record discloses that the
owner submitted two documents to substantiate the alleged first
filing of the MCI application on April 2, 1987. One was an
affidavit by its employee stating that the application was filed
by personal delivery on April 2, 1987, and that the owner's copy
of the application was dat d stamped. The other was an un-
docketed copy of RA-79N, date stamped on April 2, 1987.
The Commissioner further notes that under the procedures in
effect at the time in question, following the initial submission
of an MCI application to the Administrator, the application
(which does not include the RA-79N) was screened, assigned a
docket number and then the docketed RA-79N (along with other
forms) was forwarded to the owner. Thus, the RA-79N was not
provided to owner's as part of the original MCI application form
package to be filed by owners and the affidavit submitted by the
owner is belied by the un-docketed copy of RA-79 N date stamped
April 2, 1987. Furthermore, the petitioner has failed to submit
a date stamped copy of the MCI application allegedly filed on
April 2, 1987, and since no other proof has been submitted to
substantiate the April 2, 1987 filing, the Administrator's
determination is supported by the record.
On the basis of the entire evidence of record, it is found that
the Administrator's order was correct and should be affirmed.
THEREFORE, in accordance with the applicable provisions of the
Rent Stabilization Code for New York City, and Operational
Bulletin 84-1, it is
ORDERED, that the Administrative Appeal be, and the same hereby
is, denied; and that the Administrator's order be, and the same
hereby is, affirmed.
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ISSUED:
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ELLIOT SANDER
Deputy Commissioner
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