Docket Number: FB-620055-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. FB-620055-RO
:
RIN REALTY CORP., DRO DOCKET NO. CG-620005-AD
PETITIONER :
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ORDER AND OPINION TERMINATING AND DISMISSING PROCEEDING
BEFORE ADMINISTRATIVE REVIEW
On January 29, 1991, the above named owner, by its attorney, filed
by certified mail (P 389 566 200) a document dated January 30, 1991,
denominated as a "Supplement To" a Petition for Administrative
Review to be considered in connection with a Petition for
Administrative Review purportedly on file with the DHCR, appealing
an order, issued on August 14, 1990 by the Rent Administrator at
Gertz Plaza Jamaica, New York concerning the housing accommodations
known as 540 Southern Boulevard, Bronx, New York, Apartment 18-A.
The Administrator's Order determined the tenant's complaint alleging
that the accommodations were subject to rent control, found the
premises to be rent stabilized, established the legal regulated rent
at $161.64 per month effective October 1, 1989, and directed the
owner to refund to the tenant all excess rent collected as of August
30, 1986.
However, a thorough and diligent review of the DHCR records by the
Division's Screening and Docketing Unit indicated that there was no
original filing of a petition for administrative review for the
above captioned premises. Consequently the petition for
administrative review docket number in the instant proceeding was
assigned to process the owner's submissions herein.
By a "Notice of Opportunity to Present Further Information and
Evidence," dated April 23, 1991, the owner was requested to submit a
copy of the original petition for administrative review appealing
the Administrator's order under DRO Docket NO. CG 620005-AD and/or
to submit the docket number assigned to the original petition for
administrative review.
Section 2529.2 of the Rent Stabilization Code provides, in pertinent
part, that a party can establish that a petition for administrative
review was timely filed by submitting adequate proof of mailing such
as an official Postal Service receipt or certificate of mailing.
The petitioner-owner, by its attorneys, by a letter dated May 10,
1991, responded that the owner had been unable to locate a copy, and
that its attempts to locate the file at the Division were also
unsucessful. In support of the claim of timely filing, the owner
attached a copy of affidavit by the owner's employee attesting that
she had timely filed the petition for administrative review.
Docket Number: FB-620055-RO
However, an affidavit of service, submitted more than seven (7)
months after the expiration of the deadline for filing a timely
petition for administrative review, is not the type of independent
and objective evidence required under the Code to establish that a
petition for administrative review was filed in a timely manner.
One need not speculate as to the owner's intent to file a timely
petition for administrative review. However, the Code requires the
petitioner to document claims of timely filing. The owner having
failed to establish by proper documentation that the petition for
administrative review was timely filed, the owner's characterization
of the submissions herein as a supplement cannot be sustained.
Since the owner failed to establish by adequate proof that a
petition for administrative review was filed, or that there was
fraud, illegality or an irregularity in a vital matter sufficient to
warrant an extension of time to file a petition for administrative
review, the owner's application cannot be afforded further
consideration.
THEREFORE, in accordance of the provisions of the Rent Stabilization
Law and Code, Chapter 403 of the Laws of 1983, and Chapter 102 of
the Laws of 1984, it is
ORDERED, that these proceedings be terminated in accordance with the
above and that the owner's request to consider a petition for
administrative review be denied.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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