FG410041RT
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. NO. 7421
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. FG410041RT
: DRO DOCKET NO.ZDC410314R
KENNY HAWCO
PETITIONER :
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ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
On July 5, 1991, the above-named petitioner-tenant filed a
Petition for Administrative Review against an order issued on May
30, 1991, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
500 West End Avenue, New York, New York, Apartment No. 6D wherein
the Rent Administrator determined that the owner had not overcharged
the tenant.
Subsequent thereto, the petitioner-tenant filed a petition in
the Supreme Court pursuant to Article 78 of the Civil Practice Law
and Rules requesting that the "deemed denial" of the petitioner's
administrative appeal be annulled. This proceeding was then
remitted to the Division for a determination of the petitioner's
appeal.
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 originally commenced by the tenant's filing
of a rent overcharge complaint in March, 1989 in which the tenant
stated that he first moved to the subject apartment on December 1,
1986 and had never been served with a copy of the apartment
registration form (RR-1 form) and that he believed that the owner
had failed to properly serve the RR-1 form on either him or any
prior tenant and that the subject apartment was not registered with
the DHCR in 1984.
The owner was served with a copy of the tenant's complaint and
directed to submit proof of service of the RR-1 form on the DHCR.
In response, the owner submitted a rental history from 1984, an
affidavit from an employee of the Rent Stabilization Association
(RSA) to the effect that the RSA mailed the RR-1 form to all rent
stabilized tenants of the subject premises on August 24, 1984, a
copy of the 1984 RR-1 form addressed to a prior tenant of the
subject apartment and the 1984 apartment registration list prepared
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by RSA for the subject premises. No proof of service on the DHCR
nor the U.S. Postal receipt for proof of service on the tenant was
submitted.
In Order Number ZDC4100314R, the Rent Administrator accepted
the owner's submissions as proof that the RR-1 form had been duly
registered and served on the tenant then in occupancy and based on
the rent in effect from April 1, 1984, determined that no rent
overcharge had occurred.
In this petition, the tenant alleges in substance that the
finding of proper registration was erroneous since the subject
apartment was not registered with the DHCR in 1984 and he does not
believe that any prior tenant received a copy of the RR-1 form.
The Commissioner is of the opinion that this proceeding must be
remanded to the Rent Administrator for further consideration.
An examination of DHCR records for the subject apartment does
not disclose that the owner in fact registered the subject apartment
with the DHCR for 1984. However pursuant to Policy Statement 92-3,
proof of filing of the initial registration with the DHCR for years
prior to 1988 may be established based upon the totality of the
evidence. An owner may establish the filing of an initial
registration statement with the DHCR for any year prior to 1988 by
submitting as many of the documents listed below as possible.
Although no single document shall be conclusive proof of filing, the
totality of evidence submitted shall be considered in determining
whether such filing was made. These documents are as follows:
Certified Mail Receipt or Post Office Proof of Mailing to DHCR Rent
Registration Unit;
Notarized Registration Summary Form;
Affidavit of Service made after the filing with the DHCR by the
person who actually did the mailing or who was responsible for
overseeing the owner's mailing procedures;
Receipts, bills, affidavits or other proof of service from an
organization or an agent who was contracted by the owner to file
registration forms with the DHCR on the owner's behalf;
Admission of service by tenants or substantial proof of service of
the registration on tenants.
In the instant case, the owner was not afforded an opportunity
to submit proof of service on the DHCR according to the specific
criteria outlined above. It is noted that the owner submitted
incomplete proof of service on the tenant then in occupancy since
the owner did not submit a copy of the Post Office receipt in
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support of such service on the tenant. Accordingly, this proceeding
is being remanded to afford the owner a final opportunity to submit
proof of service of the RR-1 form on both the DHCR and the tenant
then in occupancy in accordance with the above criteria. Any
submission by the owner should be served on the tenant herein and
the tenant given a chance to respond. If the owner submits adequate
proof in accordance with Policy Statement 92-3, an order should be
issued affirming the Rent Administrator's earlier order and finding
no rent overcharge. If the owner does not submit adequate proof,
the Rent Administrator should consider the tenant's complaint as a
timely objection to the initial registration and direct the owner to
submit a rental history from April 1, 1980. The rent in effect on
April 1, 1984 should then be determined based on the rental history
from April 1, 1980 (or determined based on default methods if the
owner fails to submit such rental history) and frozen at such level
until the owner is found to have completed the initial registration
requirements for the subject apartment.
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, remanded to the Rent Administrator for further
processing in accordance with this order and opinion.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
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