GD 410474 RT

                                STATE OF NEW YORK
                          OFFICE OF RENT ADMINISTRATION
                                   GERTZ PLAZA
                             92-31 UNION HALL STREET
                             JAMAICA, NEW YORK 11433

      APPEAL OF                              DOCKET NO.: GD 410474 RT

           Ann Giordano,                     DRO DOCKET NO.: ZDF 410367 R



      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 

      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 

          GD 410474 RT

      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 

      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 

      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 

      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 

          GD 410474 RT

      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.


                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner



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