FE 410204 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. 6513
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FE 410204 RO
DYCKMAN STREET
115 ASSOCIATES, DRO DOCKET NO.: L-004098 R
TENANT: ARCENIA HERALDO
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On May 17, 1991, the above-named owner filed a Petition for
Administrative Review against an order issued on May 14, 1991, by
the Rent Administrator in Jamaica, concerning the housing
accommodations known as 1 Post Avenue, New York, New York,
Apartment 42, wherein the Rent Administrator determined that the
owner had overcharged the tenant.
This proceeding originated with the tenant's filing of an
overcharge complaint in September 1985. While the Administrator
was processing same the owner submitted to him, inter alia,
photocopies of (1) An Apartment Registration dated July 9, 1984,
indicating that the subject apartment, occupied by "Argeniz
Herado," was rented for $450.00 per month on April 1, 1984, and
(2) a lease to the tenant for that apartment, commencing July 20,
1983.
The ensuing order, here appealed, states inter alia: that the
evidence failed to establish that the subject accommodations were
initially registered as required by the Rent Stabilization Code;
that such failure results in a proceeding being handled as a timely
Tenant Challenge to the Initial Registration; that the legal rent
herein, for the purpose of determining an overcharge, is deemed to
be that charged on April 1, 1980; that the owner was obliged to
submit a complete rental history starting with that date; that the
owner failed to submit the necessary documentation; and that the
legal stabilized rent has therefore been established by a "default"
rent computation. In an accompanying calculation chart
incorporated in the order, the lawful rent is "frozen" at its base
date level, with no increase allowed whatsoever and a total rent
overcharge of $52,750.63 found.
After filing the instant petition against that order, the owner
filed an Article 78 Petition with the Supreme Court, under the
FE 410204 RO
Civil Practice Law and Rules, requesting that the "deemed denial"
of its petition be annulled. Pursuant to the Article-78 petition,
this matter has now been remitted to the DHCR for expeditious
determination of the administrative appeal.
In this petition, the owner alleges in substance that all requested
information was submitted, and that increases allowed under orders
of the Rent Guidelines Board should have been included in the
Administrator's computations. The tenant responds that the record
shows an undeniable overcharge, but that she can if necessary
submit all of her rent receipts and resubmit all her leases.
The Commissioner, having carefully considered the relevant portions
of the record, is of the opinion that the petition should be
granted.
The crux of the Administrator's order is the owner's stated failure
to provide proof of initial registration. Records of this Division
show, however, that a 1984 Registration form for the subject
apartment, listing "Argeniz Herado" as the tenant, was filed.
Because of the similarity between that name and the tenant's,
because the letters z (as in "Argeniz") and a (in Arcenia) are
adjacent on typing keyboards, because the rent and the apartment
number on the registration form agree with those in the
corresponding lease, and because of the owner's very submission of
that form as pertaining to the subject accommodations, the
Commissioner has no difficulty in determining that the pertinent,
filed 1984 Registration is in the records of the Division.
Further pursuant to Sections 2522.3(c)(2), 2526.1(a)(2)(ii), and
2528.2(d) of the Rent Stabilization Code, a tenant must file a
challenge to the initial apartment registration (overcharge
complaint or fair market rent appeal) within 90 days of service of
the registration form on the tenant by certified mail. Section
2528.2(d) further provides that for registrations served prior to
the effective date of that section, any method of service permitted
by the DHCR at the time of service shall be deemed to have the same
effect as service by certified mailing.
The Division's instructions for service of the initial apartment
registration on the tenant by the owner provided for hand delivery
of the envelope with signed receipt, use of the Post Office
"Carrier Route Pre-Sort" Service through a bonded mailing house as
evidenced by the Post Office date-certification of the number of
pieces received from the mailing house for each building and the
mailing house addressee list or regular first class mail documented
by Post Office form number P.O. 3877.
DHCR instructions further provided that the proof(s) of receipt,
properly signed and dated (by the tenant, post office, and the
mailing house, as appropriate) would be considered adequate by the
DHCR to establish the tenant's 90 day challenge period, which would
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begin on the date of receipt.
To document the date of mailing of the apartment registration to
the tenant, the owner submitted the R.S.A. mailing house addressee
list and the postal receipt for the August 13, 1984 mailing. The
Commissioner finds that the documentation conforms to DHCR service
requirements and proves the mailing of the apartment registration
to the tenant on August 13, 1984.
The tenant's complaint was date-stamped received by the DHCR on
September 9, 1985, more than 12 months following service of the
initial apartment registration on the tenant on August 13, 1984.
The Commissioner therefore finds that the tenant failed to file a
timely challenge to the April 1, 1984 rent. Accordingly, the April
1, 1984 registered rent must be considered as the initial legal
registered rent for the subject apartment.
In consequence of that registration, there is no reason to employ
the aforementioned April 1, 1980, as the base for determining the
initial legal rent herein, and no reason to "default" the owner for
failing to supply all leases from that date. The initial legal
rent becomes that in effect on April 1, 1984, and subsequent
increases based thereon are all seen to have been proper, so that
there has been no overcharge herein.
If the owner has already complied with the Rent Administrator's
order and there are arrears due to the owner as a result of the
instant determination, the tenant is permitted to pay off the
arrears in 24 equal monthly installments. Should the tenant vacate
after the issuance of this order or have already vacated, said
arrears shall be payable immediately.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, granted,
and that the Rent Administrator's order be, and the same hereby is,
revoked.
ISSUED:
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JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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