DOCKET NUMBERS:  FE810067RO, ET AL.
                              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   
     IN THE MATTER OF THE ADMINISTRATIVE    :  
     APPEAL OF                                 ADMINISTRATIVE REVIEW  
                                            :  DOCKET NUMBERS:        
                                               FE810067RO  FE810076RO
           ABC PROPERTIES,                  :  FE810068RO  FE810077RO
                                               FE810069RO  FI810003RO
                             PETITIONER     :  FE810070RO  FI810004RO
     ---------------------------------------X  FE810071RO  FI810005RO
                                               FE810072RO  FI810006RO
                                               FE810073RO  FJ910415RO
                                               FE810074RO  FJ810416RO
                                               FE810075RO  FJ910417RO
                                               DRO DOCKET NUMBERS:        
                                               LBE810008R  LBE810014R
                                               LBE810024R  LBE810027R
                                               LBE810028R  LBE810039R
                                               LBE810001R  LBI810005R
                                               LBG810048R  LBH810009R
                                               LBE810025R  LBG810040R
                                               LBE810037R  LBG810003R
                                               LBF810004R  LBE810016R
                                               LBE810015R  LBE810044R,
                                                          respectively


          ORDER AND OPINION DENYING 18 PETITIONS FOR ADMINISTRATIVE REVIEW

     These petitions have been consolidated as they involve common issues of law 
     and fact.

     The above named petitioner-owner timely filed 18 Petitions for Administrative 
     Review against 18 orders issued by the Rent Administrator, 55 Church Street, 
     White Plains, New York, concerning housing accommodations known as various 
     apartments, Larchmont Acres West, Larchmont, New York, wherein the Rent 
     Administrator determined that the 18 tenants herein had been overcharged.

     The issue in this appeal is whether the Administrator properly disallowed 
     rent increases taken by the owner on leases commencing on or after October 1, 
     1985 but before September 30, 1986 because the owner had failed to file 
     certain required data to the Westchester County Rent Guidelines Board by May 
     15, 1985.

     The applicable sections of the Emergency Tenant Protection Act (ETPA) are 
     Sections 4 and 12 (8624 and 8632 in McKinney's Unconsolidated Laws [Book 
     65]).











          DOCKET NUMBERS:  FE810067RO, ET AL.


     The Commissioner has reviewed all of the evidence in the record and has 
     carefully considered that portion of the record relevant to the issues raised 
     by these administrative appeals.

     In the Orders herein under review, the Rent Administrator determined that 
     because the owner had filed the Maintenance and Operating (M & O) Cost Survey 
     after its May 15, 1985 due date, and because there was no evidence or even an 
     allegation that the Westchester County Rent Guidelines Board (Board) had 
     accepted the owner's reasons for filing late, the owner was ineligible to 
     impose Rent Guidelines increases on leases commencing during the 1985-1986 
     Rent Guidelines period.

     In this petition, the owner contends that the Rent Administrator's Orders are 
     incorrect and should be modified because the Board had no power to impose 
     such a penalty for late filing and secondly, even if the Board had such 
     power, the penalty should not be applied herein since the required Mainte 
     nance and Operating schedule was submitted less than two weeks late.  More 
     specifically, the owner argues that under ETPA the Board is empowered to 
     collect data and adopt guidelines for rent increases - but has no authority 
     to impose penalties.  Therefore, the Guidelines Order for the period in 
     question "insofar as it purports to bar an owner from collecting rent 
     guidelines increases for an entire year based upon the late filing of an M & 
     O Schedule is an unlawful exercise of authority by the County Rent Guidelines 
     Board." (Emphasis in original.)

     In addition, the owner contends that the penalty imposed by the Board "is 
     inconsistent with the spirit and intent of the ETPA and the regulations 
     promulgated thereunder."  The owner supports this contention by noting that 
     under the Tenant Protection Regulations (TPR) a failure to timely file a 
     Certificate of Services or an annual registration statement only results in 
     an owner being precluded from collecting rent increases until the owner 
     subsequently files the required documentation, at which point the owner can 
     collect the rent increases prospectively.  Therefore, the Board's penalty 
     herein also should not penalize an owner beyond the date of actual filing.

     Accordingly, the owner contends the Administrator "erred by imposing a rent 
     overcharge penalty based upon an unlawful and unenforceable resolution of the 
     County Rent Guidelines Board."

     Furthermore, the owner argues that neither the Board nor the tenants have 
     even asserted that they were prejudiced by the late filing, whereas the 
     prejudice to the owner is "severe," especially since the lateness was not 
     willful.  The delay is alleged to have been caused by "an office oversight" 
     whereby the March 1985 letter from the Board "did not come to the attention 
     of ...the owner's managing partner until after the May 15th deadline, and as 
     soon as he became aware of it the Schedule was completed and filed by hand- 
     delivery."  The owner's "good faith" is also said to be demonstrated by the 
     fact that all prior M & O schedules had been filed on time.

     Finally, the owner requests that all 18 petition be consolidated to avoid 
     inconsistent determinations as each involves "identical issues."




     In answer to these petitions the tenants argue that the Administrator's 



          DOCKET NUMBERS:  FE810067RO, ET AL.

     Orders were correct and should be upheld.

     In particular, the tenants contend that the petitioner "has no legal standing 
     in this proceeding" as it is not the owner of record.

     On the merits, the tenants state the Board "does have the express authority 
     to adopt guidelines which bar the landlord from collecting any increase for 
     the period in question for failure to timely file the Maintenance & Operating 
     Expense Schedule."

     The tenants contend that the M & O Schedule "is required on a timely basis so 
     that it may be analyzed by the Rent Guidelines Board.  And if by two days or 
     by two weeks the landlord failed to meet the deadline as required, he is in 
     violation because the financial data is not available to be included in the 
     data used by the Guidelines Board to determine increases."

     The tenants further contend that the owner "made no attempt to be excused for 
     this failure.  The landlord had several opportunities to appear before the 
     ...Board to offer any and all relevant facts and request that the ...Board 
     remove the landlord from the [list of owners ineligible to take Guidelines 
     increases during the period in question]."

     The tenants allege that the owner also failed to file an O & M Schedule for 
     another building, thereby demonstrating "a blatant disregard for the 
     authority and procedures of the Board."

     The tenants also assert that "the Administrator simply administered the 
     regulations as he is required to do" so that the Administrator's order is 
     correct.

     Finally, the tenants also request consolidation of these petitions.

     The Commissioner is of the opinion that these petitions should be denied.

     At the outset, the Commissioner, notes that the petitioner was the landlord 
     named in all of the orders herein under review.  The petitioner was also 
     named by the tenants in their complaints.  Furthermore, in 1987 the 
     petitioner's lawyer filed a notice of appearance for the petitioner (who was 
     then before the Administrator), despite the fact that Larchmont Owners 
     Corporation took title in September of 1986 from Larchmont Acres Associates, 
     a limited partnership.  The Commissioner notes that the Regulations' 
     definition of Landlord includes an agent of the actual owner, including the 
     managing agent.  Therefore, the petitioner is an entity aggrieved by the 
     Administrator's orders and has standing to appeal under TPR Section 
     2510.1(a).

     The Division is required to Administer ETPA and, in particular, to find an 
     overcharge whenever an owner collects rent in excess of the rent authorized 
     under ETPA.  For a rent to be authorized, it must conform with the applicable 
     Guidelines Board Order.  The Board Order in effect during the period in 
     question in this proceeding states:



               "The Board has determined that it will authorize no 
               rental adjustment for the class of housing accommodations 
               for which the owners have failed to submit or timely 








          DOCKET NUMBERS:  FE810067RO, ET AL.

               submit required data to the Board and have failed to 
               provide a legally acceptable reason to be determined 
               pursuant to the Board's directive and resolutions and as 
               implemented by written notices to said owners sent by 
               certified mail."


     Therefore, the Administrator was constrained, as is the Commissioner, to find 
     that the owner herein was not eligible to impose a Guidelines rent increase 
     during the period in question.  The Board is a quasi-legislative body and its 
     rulings are not subject to review by the Division.  Accordingly, the owner 
     can not collaterally attack the Board's Order in a proceeding before the 
     Division.  This Order is without prejudice to the owner's right to challenge 
     the Board's Order in a court of competent jurisdiction.

     It is undisputed that the owner did not timely file the O & M Schedule by May 
     15, 1985.  Division records show that the Schedule was received by the owner 
     on March 13, 1985, two months before the deadline.  It was properly addressed 
     and the return receipt was signed.  The owner's contention in its Petition 
     that "[t]hrough an office oversight, the matter did not come to the managing 
     partner's attention at ABC Properties until after the May 15th filing 
     deadline," does not contradict that the schedule was received by the owner on 
     March 13, 1985.  If such an excuse were deemed acceptable the deadline would 
     have no meaning at all.

     ETPA Section 4 mandates the establishment of a Rent Guidelines Board in each 
     of the three ETPA countries and provides that each Board


               "shall establish guidelines for rent adjustments which, 
               at its sole discretion may be varied and different for  
               and within the several zones and jurisdictions of the 
               board, and in determining whether rents for housing 
               accommodations as to which an emergency has been declared 
               pursuant to this act shall be adjusted, shall consider 
               among other things (1) the economic condition of the 
               residential real estate industry in the affected area 
               including such factors as the prevailing and projected 
               (i) real estate taxes and sewer and water rates, (ii) 
               gross operating maintenance costs (including insurance 
               rates, governmental fees, cost of fuel and labor costs), 
               (iii) costs and availability of financing (including 
               effective rates of interest), (iv) overall supply of 
               housing accommodations and over-all vacancy rates, (2) 
               relevant data from the current and projected cost of 
               living indices for the affected area, (3) such other data 
               as may be made available to it.  As soon as practicable 
               after its creation and thereafter not later than July 
               first of each year, a rent guidelines board shall file 
               with the state division of housing and community renewal 
               its findings for the preceding calendar year, and shall 
               accompany such findings with a statement of the maximum 
               rate or rates of rent adjustment, if any, for one or more 
               classes of accommodation subject to this act, authorized 
               for leases or other rental agreements commencing during 
               the next succeeding twelve months.  The standards for 
               rent adjustments may be applicable for the entire county 



          DOCKET NUMBERS:  FE810067RO, ET AL.

               or may be varied according to such zones or jurisdictions 
               within such county as the board finds necessary to 
               achieve the purposes of this subdivision."  (Emphasis 
               added.)


     As stated above, the Division does not have the power to review the Board's 
     Orders.  Nevertheless, the Commissioner notes that the Board has the power to 
     establish different rent increase rates, or no rates at all, for different 
     classes of housing.  Furthermore, the Board must base its decision in part on 
     "gross operating maintenance costs" and the Board itself has a July 1st 
     deadline to promulgate both its findings and the maximum rent increases for 
     the following cycle (in part based on the O & M Schedules).

     It is clear that to meet its own deadline the Board must consider the O & M 
     Schedules, if at all, within the month and half period before the July 1 due 
     date for its Order.  While most deadlines are to some extent arbitrary, 
     clearly some deadline is required in order for the Schedules to be consid 
     ered.  Surely, the owner's suggestion that owners be allowed to collect 
     Guidelines increases upon filing of the Schedules has no merit.  The rent 
     increases can occur no earlier than October 1st, whereas the Schedules are 
     due the preceding May 15th.  Under the owner's suggestion there would be no 
     incentive at all to timely file.

     THEREFORE, in accordance with the Emergency Tenant Protection Act and 
     Regulations, it is  

     ORDERED, that these petitions be, and the same hereby are, denied and the 
     Rent Administrator's orders be, and the same hereby are, affirmed.

     Note:  In petitions numbered FE810071RO and FE810074RO the landlord stated 
     the Administrator's order being appealed were LBE810048R and LBE810004R, 
     respectively.  However, the actual orders being appealed, which were attached 
     to the landlord's petitions, were LBG810048R and LBF810004R, respectively.  
     The correct numbers appear in the above captions.

     ISSUED:



                                                                            
                                               JOSEPH A. D'AGOSTA
                                               Deputy Commissioner
      





    

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