FD 130255 RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FD 130255 RO
DRO DOCKET NO.: CH 120160 FR
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 23, 1991 the above-named petitioner-landlord filed an
appeal against an order issued on March 19, 1991, by the Gertz
Plaza Rent Office, concerning the housing accommodation known as
34-02 36th Avenue, Long Island City, New York, Apartment Nos. 1A,
1B, 2B and 3B.
The issue in this proceeding is whether Fuel Cost Adjustments
should have been suspended for the calendar year 1988.
The Rent Administrator's order, appealed herein, suspended all
fuel cost adjustments for the period January 1, 1988 - December
31, 1988 and reinstated same in a reduced amount, effective
January 1, 1989.
This order was based upon a finding that the owner of the subject
building had previously obtained allowable fuel cost adjustments
and failed to timely serve and file the required report of fuel
cost decrease by reason of a decrease in the price of gas during
the calendar year 1987.
On appeal, the petitioner-landlord urges, in substance, that this
Administrator's order should be reversed since all tenants were
served in a timely manner.
After a careful consideration of the entire evidence of record
the Commissioner is of the opinion that the administrative appeal
should be denied.
The applicable provisions of the Rent Regulations, 9 NYCRR
2202.13, provide that where a landlord has obtained fuel cost
adjustments and then there is a finding of fuel price decrease,
within 60 days of the promulgation of the finding on fuel prices,
the landlord must serve and file a report of fuel price decrease.
In 1988 a finding was promulgated that the price of gas - (Lilco)
had declined during 1987. Therefore, the subject landlord was
required to file and serve fuel cost decrease reports on or
FD 130255 RO
before August 29, 1988.
In this regard the record in the proceeding below discloses that
by notice dated February 6, 1991 the landlord was afforded the
opportunity to establish the proper filing of a 1988 Landlord's
Report, Certification and Notice of Fuel Cost Adjustment
Eligibility by the submission of, among other things, a
photocopy of the fuel cost report and schedule with the filing
date stamped by the Division of Housing and Community Renewal
(DHCR) or an affidavit signed by the affected tenants stating
that they were served a timely report. The landlord's submission
of a 1987 monthly schedule in response thereto without a DHCR
stamped receipt and without a copy of the Landlord's Fuel Cost
Report and Certification was inadequate to meet the required
burden of proof.
The Commissioner is of the opinion the Rent Administrator
correctly suspended Fuel Cost Adjustments for the calendar year
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations for New York City, Chapter 403, Laws of 1983
as amended by Chapter 102, Laws of 1984 and Operational Bulletin
84-1, 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.
JOSEPH A. D'AGOSTA