FC410037RO; FB410306RT
                             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. 6780
      IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
      APPEALS OF                              DOCKET NOS.: FC410037RO;
                                                           FB410306RT  

                  KALIKOW 78/79
                     AND
                   PAUL SAVAGE                DRO DOCKET NO.: ZBL410346R

                            PETITIONERS       TENANT:  PAUL SAVAGE
      -----------------------------------X         


                   ORDER AND OPINION GRANTING OWNER'S PETITION
                                       FOR
                              ADMINISTRATIVE REVIEW
                                       AND
               DENYING TENANT'S PETITION FOR ADMINISTRATIVE REVIEW


      On March 5, 1991 the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on January 30, 1991 by the 
      Rent Administrator, 92-31 Union Hall Street Jamaica, New York, 
      concerning the housing accommodations known as 523 East 78th Street, New 
      York, New York, Apartment No. 2H, wherein the Rent Administrator 
      determined that due to the owner's failure to file an annual 
      registration for 1986, the rent was frozen as of April 1, 1986 and the 
      owner had collected an overcharge from the tenant.

      On February 19, 1991, the petitioner-tenant filed a petition for 
      Administrative Review against the aforementioned order.  These petitions 
      are being consolidated for disposition herein.

      Subsequent thereto, the petitioner-tenant filed a petition in the 
      Supreme Court pursuant to Article 78 for the Civil Practice Law and 
      Rules requesting that the "deemed denial" of both petitioners' 
      Administrative appeals be annulled.  This proceeding was then remitted 
      to the Agency for a determination of the petitioners' appeals.

      The Administrative Appeals are being determined pursuant to the 
      provisions of Section 2528 of the Rent Stabilization Code (hereafter 
      RSC) and 26-513 of the Rent Stabilization Law (hereafter RSL).

      The Commissioner has reviewed all of the evidence in the record and has 
      carefully considered that portion of the record relevant to the issue 












          FC410037RO; FB410306RT

      raised by the administrative appeals.

      This proceeding was originally commenced in December 1987 by the filing 
      of a rent overcharged complaint by the tenant in occupancy since October 
      31, 1983 wherein the tenant contends that his initial rent of $600.00 
      was too high as the rent on March 31, 1980 was under $200.00.  In such 
      complaint, in answer to the question "Did the owner provide you with a 
      copy of the Apartment Registration Form (Form RR-1) for your 
      apartment?", the tenant responded yes but stated he did not know when 
      since he received at least two.

      In response to the tenant's complaint, the owner stated in substance 
      that the tenant was the second rent stabilized tenant; that prior to 
      October 16, 1983 the apartment was rent-controlled and submitted a copy 
      of a notice of Initial Legal Regulated Rent (hereafter DC-2) with proof 
      of certified mail service on the prior tenant date stamped October 28, 
      1983; and a copy of a certificate of mailing by the Rent Stabilization 
      Association (hereafter RSA) with an apartment registration list 
      indicating that a copy of the Initial Apartment Registration (hereafter 
      RR1) was served on the tenant herein on June 29, 1984.

      In order number ZBL410346R, the Rent Administrator established the 
      initial legal registered rent at $600.00, the rent charged by the owner 
      on April 1, 1984, but froze the rent at $673.11 effective April 1, 1986 
      due to the owner's failure to file an annual registration for 1986, and 
      directed a refund to the tenant of an overcharge of $4,422.34, including 
      treble damages.

      In its petition, the owner contends in substance that there is no rent 
      overcharge in that it has always been in complete compliance with 
      registration requirements and had hand-delivered the 1986 registrations 
      for the subject building directly to the Gertz Plaza Office of the 
      Division of Housing and Community Renewal (DHCR); that a manual search 
      for the original hard copy of the registration should be undertaken and 
      that a possible mix-up may have occurred because the subject premises is 
      one building in a multi-building complex.  A copy of an affidavit 
      attesting to the delivery by had of the 1986 registration forms signed 
      by the leasing and accounts receivable manager for the owner, which had 
      been submitted below, was resubmitted with the petition.

      In answer to the owner's petition, and in his own petition, the tenant 
      contends in substance that the Rent Administrator did not give adequate 
      consideration to the tenant's fair market rent appeal (hereafter FRMA); 
      that the DC-2 notice was allegedly served on the prior tenant only 3 
      days before the complainant took occupancy on October 31, 1983 and no 
      copy of the DC-2 was re-served on him although the 90 day period had not 
      expired; that the prior tenant was in occupancy only about 2 weeks and 
      transferred the lease to the complainant; that no copy of the DC-2 was 
      with the prior tenant's transferred papers; that the prior tenant had 
      disavowed receipt of such a form and further the complainant was never 
      served a copy of the RR1 or any registrations prior to 1987; that prior 
      to the owner's dispute with the Landmark's Commissioner, it had failed 






          FC410037RO; FB410306RT

      to comply with registration requirements for any of the buildings in the 
      complex; that the apartment list accompanying the RSA mailing was marked 
      "amended"; that although the complainant was in occupancy on April 1, 
      1984, the registration on file with the agency does not list the 
      complainant's name but leaves that information blank; and that although 
      the tenant had responded to the Rent Administrator's treble damage 
      notice in December 1990 requesting updating of the overcharge, the order 
      only calculated the overcharge through October 31, 1988.

      With his petition, the tenant submitted an affidavit attesting to 
      receipt of only annual registration forms for 1987 and 1988 and 
      disavowing the receipt of the RR1 on June 29, 1984 as shown in the RSA 
      mailing documents.

      The Commissioner is of the opinion that the owner's petition should be 
      granted and that the tenant's petition should be denied.

      Sections 2528.2 and 2528.3 of the Rent Stabilization Code (hereafter 
      RSC) outline the owner's obligations under the Omnibus Housing Act to 
      register subject housing accommodations with DHCR.

      Section 2528.1 of the Rent Stabilization Code requires that the owner 
      file an Initial Apartment Registration Form (RR1) indicating the rent in 
      effect on April 1, 1984 with the Agency and serve a copy of such form on 
      the rent stabilized tenant in occupancy on April 1, 1984.

      Section 2526.2(a)(ii) states in pertinent part that any complaint based 
      upon overcharges occurring prior to the date of filing of the initial 
      rent registration . . . shall be filed within ninety days of the mailing 
      of the notice to the tenant of such registration.

      The Regulations do not provide for any extension of this 90 day period.

      Section 2528.2(d) of the Rent Stabilization Code provides in pertinent 
      part that a copy of the RR1 form served prior to May 1, 1987 may be by 
      ". . . any method of service permitted by the Division of Housing and 
      Community Renewal (DHCR) at the time of service. . ."

      In the instant case, the owner submitted proof of service showing that 
      a copy of the RR1 notice was served on the tenant by one of 3 methods 
      permitted by DHCR prior to May 1, 1987, specifically, bulk mailing by 
      the RSA, as established by the RSA affidavit of service, USPS mailing 
      permit date-stamped on June 29, 1984 and an apartment registration list 
      which indicated the complainant as one of the addressees of the June 29, 
      1984 mailing.

      The tenant's complaint filed on December 27, 1987 is in excess of 90 
      days from service of the RR1 on June 29, 1984 and therefore cannot be 
      considered as a timely fair market rent appeal.  Accordingly, the 
      initial legal registered rent of $600.00 per month effective April 1, 
      1984 was correctly utilized in the Rent Administrator's order.













          FC410037RO; FB410306RT

      Although the tenant disputes receipt of the RR1 form, the documents 
      submitted by the owner clearly show that the tenant was the party to 
      whom the RSA mailed copies of the RR1 form on June 29, 1984.  The tenant 
      has failed to indicate any document other than the RR1 that may have 
      been mailed by the RSA on June 29, 1984 nor any reason why the RSA would 
      mail other than the RR1 form so stated in their affidavit.  Moreover, 
      the tenant does not dispute the fact that he was the tenant in occupancy 
      of the subject apartment on June 29, 1984 and in his original complaint 
      the tenant acknowledged receiving the RR1 form although he did not say 
      when he received it.

      With regard to the tenant's ancillary contentions concerning service of 
      the DC-2 notice on the prior tenant in October 1983, the Commissioner 
      notes that the subsequent proper service of the RR1 form is sufficient 
      to cure any alleged defects in the earlier serving of the DC-2 notice.

      With regard to the owner's petition, Section 2528.4(b) of the RSC 
      provides, in pertinent part, that the penalty for failure to annually 
      register an apartment will be that the owner will be barred from 
      collecting any rent in excess of the legal regulated rent in effect on 
      April first of the year for which an annual registration was required to 
      be filed. . . and that the late filing of the registration shall result 
      in the elimination prospectively of such penalty.

      An examination of the record in this case discloses that the owner is 
      correct in its contention that the subject apartment and building were 
      registered in 1986.

      During the pendency of the appeal, DHCR undertook a search of the 
      Division's actual copies of the 1986 registrations on file with the 
      Division offices in Albany which verified that copies of the 1986 
      registration forms for the subject building (including the subject 
      apartment) were received by DHCR on October 30, 1986 with the 1986 
      Registration forms for the adjacent building (519 East 78th Street mdr 
      120972).  Further, the search disclosed that the 1984 initial 
      registrations for the subject building were received on December 8, 
      1984.

      Accordingly, the Rent Administrator's freezing of the rent effective 
      April 1, 1986, with the imposition of treble damages, was not warranted.  
      An examination for the rent record and the removal of the penalties for 
      failing to register reveal that no rent overcharge in fact occurred.


      The tenant's contention that the 1984 registration does not list him as 
      the tenant in occupancy is not a correct statement of fact, as a review 
      of the DHCR registration records does indicate "P. Savage" as the tenant 
      in occupancy on April 1, 1984.

      Finally, the tenant's request for an updating of the overcharge 
      calculation is rejected since in fact no rent overcharge occurred.







          FC410037RO; FB410306RT

      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 the owner's petition be, and the same hereby is, granted, 
      that the tenant's petition be, and the same hereby is, denied, that the 
      order of the Rent Administrator be, and the same hereby is, revoked, and 
      it is found that no rent overcharge occurred.







      ISSUED:



                                         -------------------------------- 
                                         JOSEPH A. D'AGOSTA
                                         Deputy Commissioner





       






    

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