GD 410474 RT
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.: GD 410474 RT
Ann Giordano, DRO DOCKET NO.: ZDF 410367 R
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND REMANDING PROCEEDING ON APPEAL
On April 8, 1992, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on June 13, 1991, by the
Rent Administrator, 92-31 Union Hall Street, Jamaica, New York,
concerning the housing accommodations known as 231 Second Avenue,
New York, New York, Apartment No. 1O, wherein the Rent Administrator
dismissed the tenant's fair market rent appeal as untimely filed.
The tenant stated that she first received a copy of the Rent
Administrator's order issued June 13, 1991 on March 16, 1992 because it
was sent to the subject address and not her current mailing address.
A review of the records discloses that the tenant had advised the Rent
Administrator by letter dated June 1, 1990 that she was vacating the
subject apartment and stated her forwarding address requesting that the
case continue to be processed. The Rent Administrator's order was
addressed only to the tenant at the subject address.
Taking the aforementioned into account, the Commissioner deems the
tenant's petition filed on April 8, 1992 as timely.
Subsequently, the Rent Administrator issued an amended order on May 7,
1992 to correct the tenant's mailing address but the issuance date of
the amended order remained June 13, 1991.
The Administrative Appeal is being determined pursuant to the provisions
of Section 26-513 of the Rent Stabilization Law.
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 on June 20, 1989 by the filing
of a complaint by the tenant who took occupancy of the subject apartment
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on June 15, 1985 at a rental of $1325.00 per month. In such complaint,
the tenant questioned the initial legal regulated rent to the subject
apartment.
With her complaint, the tenant submitted a copy of a notice of initial
regulated rent (hereafter DC-2) dated January 8, 1985 stating she never
saw this form until it was recently given to her by a previous roommate.
The owner was served with a copy of the tenant's complaint.
In response, the owner stated in substance that the tenant admitted
receiving the DC-2 notice on January 8, 1985 and therefore the tenant's
fair market rent appeal (hereafter FMRA) was untimely. The owner did
not submit proof of service or state how the DC-2 was served.
The Rent Administrator then issued the order under appeal herein finding
that the tenant is the first rent stabilized tenant; that the tenant
failed to challenge the initial rent within 90 days of receipt of the
DC-2 notice and that no subsequent overcharge occurred.
In this petition, the tenant contends in substance that the Rent
Administrator failed to consider the increase in rent above the 1974
maximum base rent.
In answer to the tenant's petition, the owner stated in substance that
the tenant filed her complaint in excess of 4 years after receipt of the
DC-2, R42 and RR1 forms and that the Rent Administrator's order was
warranted.
The tenant vacated the subject apartment prior to the issuance of the
Rent Administrator's order but submitted a forwarding address.
The Commissioner is of the opinion that this petition should be granted
and that the proceeding should be remanded to the Rent Administrator for
further processing.
Section 2522.3(a) provides impertinent part that after service of the
notice required by Section 26 of the former Rent Stabilization Code
(Notice of Initial Legal Regulated Rent also designated as the DC-2
Notice) on the first tenant taking occupancy of a formerly rent
controlled unit the time within which such a tenant may file a FMRA is
limited to 90 days after such notice was mailed to the tenant by the
owner by certified mail.
In the instant case, the owner failed to show that the tenant was served
the DC-2 notice by certified mail as required.
Further, although the tenant submitted along with her complaint a copy
of the DC-2 notice, she did not admit receiving it on January 8, 1985,
as the owner contends, nor state when her former roommate had received
it.
Accordingly, this proceeding is being remanded for further processing.
All parties are to be notified and given a chance to submit evidence in
such remanded proceeding including evidence as to whether the tenant was
served a copy of the amended initial apartment registration (RR1) and
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when and by what means the owner served a copy of the amended initial
apartment registration (RR1) and when and by what means the owner served
the DC-2 notice submitted by the tenant with her complaint and to
consider if the tenant's complaint should be processed as a FMRA on the
merits. A hearing may be held if warranted.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted, to the
extent of remanding this proceeding to the District Rent Administrator
for further processing in accordance with this order and opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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