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.:FJ 410318-RO
:
RENT ADMINISTRATOR'S
ALVIN H. GLICK DOCKET NO.:ZCJ 410025-OM
PETITIONER :
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ORDER AND OPINION GRANTING IN PART PETITION FOR ADMINISTRATIVE REVIEW
AND REMANDING PROCEEDING ON APPEAL
On October 18, 1991 the above-named petitioner-owner filed an
administrative appeal against an order issued on September 13, 1991 by
the District Rent Administrator (92-31 Union Hall Street, Jamaica, New
York) concerning the housing accommodations known as various apartments
of 41-43 Bedford Street, New York, New York.
The owner commenced the proceeding below by filing an application for
a Major Capital Improvement (MCI) rent increase for stabilized
apartments in the premises based on the installation of a boiler and
burner. The owner submitted documentation in support of the
application, including cancelled checks, the contractor's certification
and government approvals.
The District Rent Administrator's order, appealed herein, denied the
application stating "owner/applicant failed to file the application
within two years from the completion date of installation." The filing
date was determined when the Office of Rent Administration (ORA), at
Gertz Plaza, received the application on October 3, 1988.
On appeal, the petitioner-owner states, in substance, that the "an
examination of the documentation submitted with the MCI application
indisputably establishes that said application was filed within two
years of the completion date of the installation. More specifically,
in the Contractor's Certification submitted as part of the MCI
application, the Contractor certifies that the work commenced on
September 26, 1986 and was completed on September 29, 1986. In that
the MCI Application was mailed to DHCR by certified mail on September
29, 1988, said application was clearly filed within two years of the
completion date of the installation."
In response to the owner's petition, various tenants filed answers
stating, in substance, that A) "the MCI Application obviously was not
filed within the two year time period;" B) "the receipt for certified
mail is clearly postmarked September 29, 1988 which is legally (and
obviously) one day after the filing deadline, September 28, 1988;" C)
"dates appear to have been altered to accommodate the owner's
allegations of timely compliance;" D) "tenants have never received any
DOCKET NUMBER: FJ 410318-RO
copies of Contractor's invoices for this so-called capital improvement
to indicate that in fact the alleged cost of the new boiler and
installation ($17,500) are true and accurate"; E) Tenants claims the
petition for administrative review was filed untimely.
After a careful consideration of the entire evidence of record the
Commissioner is of the opinion that the Administrative appeal should be
granted in part and this proceeding remanded to the Administrator for
further processing in accordance with this order and opinion.
At the outset the Commissioner notes, that the owner did file the
petition timely. The order was issued on September 13, 1991 and the
official U.S. Postal Service postmark of the envelope used for the
petition is dated October 18, 1991. Therefore the owner did comply
with the Rent Stabilization Code Section 2529.2, "a PAR against an
order of a Rent Administrator must be filed in person on or by mail
with the DHCR within thirty-five days after the date such orders is
issued. A PAR served by mail must be postmarked not more than thirty-
five days after the date of such order, to be deemed timely file."
The Commissioner further notes that the instant application was served
on the Division on September 29, 1988, as evidenced by a date stamped
U.S. Postal receipt for certified mail. According to the Rent
Stabilization Code, Section 2527.9(a), "when service is by registered
or certified mail, the stamped post office receipt shall constitute
sufficient proof of service."
Since the contractor's certification indicates that the work in
question was completed on September 29, 1986 and since the application
was filed on September 29, 1988, the Commissioner is of the opinion
that on the face of the record this proceeding should be remanded to
the Administrator for such further processing of the Owner's MCI
application as may be deemed necessary, which processing should, among
other things consider the issue of the quality of the installation
herein (raised by the tenants in the proceeding below) and such further
contentions of the parties as may be raised upon the remand.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code, the Rent and Eviction Regulations for the
City of New York, and Operational Bulletin 84-1, it is
ORDERED, that the administrative appeal be, and the same hereby is
granted to the extent of remanding this proceeding to the Administrator
for further processing in accordance with this order and opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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