FF 110381 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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FF 110381 RO
DISTRICT RENT OFFICE
Frank Gabrielli, DOCKET NO.: BH 110505 R
TENANT: Rita Smith
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On June 24, 1991, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
June 13, 1991, by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York, concerning the housing accommodations
known as 175-51 Dalny Road, Jamaica, New York, Apartment No. 3G,
wherein the Rent Administrator determined that the owner had
overcharged the tenant.
The Administrative Appeal is being determined pursuant to the
provisions of Part 2528 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
warranted.
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant
to the issue raised by the administrative appeal.
This proceeding was commenced on August 25, 1987 by the filing of
a rent overcharge complaint by the tenant. The tenant stated,
among other things, that the owner had not registered the subject
apartment in 1984 and was therefore precluded from taking a
guideline rent increase. The tenant included a copy of a DHCR
certification that indicated that the subject apartment was not
registered in 1984. The tenant acknowledged that the apartment
was registered in 1985. In answer to the complaint, the owner
submitted a complete rental history for the subject apartment and
a copy of the initial Apartment Registration (RR-1) for 1984.
In Docket Number BH 110505 R, the Rent Administrator determined
that the owner had failed to file an initial registration of the
subject apartment and permitted no guideline increases through
August 31, 1992. The Administrator determined that the tenant
had been overcharged in the amount of $10,316.69, including
treble damages, and directed the owner to refund such overcharge
to the tenant.
In this petition, the owner contends in substance that there is
FF 110381 RO
no rent overcharge in that the subject apartment was duly
registered. The owner submits an affidavit documenting the
mailing on October 12, 1984 of the initial apartment registration
to the tenant by the Rent Stabilization Association (RSA), along
with the postal receipt for that mailing, and the RSA mailing
house addressee list.
In answer to the owner's petition, the tenant contends in
substance that there is insufficient proof to show that the
apartment was registered in 1984. Further, the tenant alleges
that she was not served with the 1984 registration and resubmits
the DHCR certification of a lack of registration.
The Commissioner is of the opinion that this petition should be
granted.
The Commissioner is considering the proof of service of the
initial registration on the tenant submitted by the owner with
its petition for review. The notices which requested proof of
service which were sent to the owner in the proceeding before the
Administrator were vague and insufficient. Therefore, to insure
due process, this documentation will be considered at this time.
An examination of the record in this case discloses that the
owner is correct in its contention that it was entitled to all
appropriate rent guidelines increases from 1984. The
Commissioner finds that the subject apartment was registered and
the record contains sufficient evidence of proof of service on
the tenant.
Section 2528.2(d) 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 rent
registration on the tenant by the owner provided for hand
delivery of the envelope with signed receipt, or 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 #P.O. 3877.
The Commissioner finds that the evidence in the record adequately
documents service of the initial registration on the tenant in
accordance with DHCR procedures. The owner's submission of an
RSA mailing house addressee list and the postal receipt conform
to the Division's service requirements and provide sufficient
evidence that the tenant was served with the initial
registration.
Regarding the DHCR-issued certification of a lack of
registration by the owner, this was apparently an inadvertant
clerical error as DHCR records, in fact, indicate that the
subject apartment was registered in 1984.
Accordingly, the owner was entitled to take appropriate guideline
increases.
FF 110381 RO
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 provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and
the same hereby is, granted, that the order of the Rent
Administrator be, and the same hereby is, revoked.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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