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

          ------------------------------------X  S.J.R. NO. 7156
          APPEAL OF                              DOCKET NO.GE410032RO
                                              :  DRO DOCKET NO.ZDK510191R

                                PETITIONER    : 

               On May 5, 1992, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on April 
          1, 1992, by the Rent Administrator, 92-31 Union Hall Street, 
          Jamaica, New York, concerning the housing accommodations known as 
          351 Wadsworth Avenue, New York, New York, Apt. C,  wherein the Rent 
          Administrator determined the fair market rent pursuant to the 
          special fair market rent guideline promulgated by the New York City 
          Rent Guidelines Board for use in calculating fair market rent 

               Subsequent thereto, the petitioner-owner 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 

               The Administrative Appeal is being determined pursuant to the 
          provisions of Section 2522.3 of the Rent Stabilization Code.

               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 commenced on November 19, 1989, by the 
          filing of a fair market rent appeal by the tenant's sister who 
          occupied the subject apartment with the tenant since the inception 
          of the tenant's occupancy in July, 1989.  The tenant's sister stated 
          in substance that the monthly rent was $790.00.  The fair market 
          rent appeal listed both the tenant and his sister as tenants in the 
          caption but was signed only by the tenant's sister.

               In an answer to the fair market rent appeal filed in December, 
          1989, the owner stated in substance that it personally delivered to 
          the tenant of record a copy of the initial apartment registration 

          S.J.R. 7156, GE410032RO

          form (hereafter RR-1 form) along with the apartment lease on July 
          25, 1989, and the tenant did not file a timely fair market rent 
          appeal (within ninety days after service of the RR-1 form).  
          Moreover the appeal in question was not filed by the tenant of 
          record but by the tenant's sister.

               On August 27, 1990,  the DHCR sent the tenant a request for 
          additional information directing that the tenant submit an executed 
          Power of Attorney or other authorization for the tenant's sister to 
          represent the tenant of record.  On September 1, 1990, the tenant 
          submitted an affidavit to the effect that he authorizes his sister 
          to represent him as tenant of record.  Further the tenant pointed 
          out that his sister is listed on the lease with him as a "co- 
          occupant" of the subject apartment.

               During the course of the proceeding before the Rent 
          Administrator, on July 30, 1990, the owner submitted proof that it 
          had served the tenant with a copy of the RR-1 form by certified mail 
          on October 14, 1989.

               On February 15, a hearing was held before an Administrative Law 
          Judge to determine whether the fair market rent appeal was timely 
          filed.  The tenant and his sister and the owner's principal and 
          managing agent were present at such hearing.  The Administrative Law 
          Judge found, based on the credible evidence of record, that although 
          the tenant signed the RR-1 form on July 25, 1989, the tenant was not 
          actually given a copy of the RR-1 form at the time he received his 
          lease on July 25, 1989, but that proper service of the RR-1 form was 
          made on or about October 14, 1989 when it was mailed to and received 
          by the tenant.  Further, the Administrative Law Judge found that the 
          tenant's sister had standing to file the fair market rent appeal 
          although the sister was not a party to the lease since the owner 
          knew that the sister intended to occupy the subject apartment on a 
          full time basis with her brother; that the sister was not a party to 
          the lease because the owner requested that she not be listed as a 
          tenant; and that were the tenant to vacate the subject apartment, 
          the sister would have "succession" rights to the subject apartment 
          pursuant to Section 2523.5(b)(1) of the Rent Stabilization Code.

               Subsequent to the hearing, the fair market rent appeal was 
          processed on the merits and the Rent Administrator determined in 
          Docket Number ZDK510191R that the initial legal regulated rent be 
          adjusted by establishing a fair market rent of $468.36         
          effective July 1, 1989, the commencement date of the initial rent 
          stabilized lease.  The fair market rent was determined solely on the 
          basis of the special fair market rent guideline plus an increase for 
          apartment improvements.  

               In this petition, the owner alleges in substance that the 
          filing requirements for a fair market rent appeal were not met in 
          that the appeal was not filed within ninety days of the personal 
          service of the RR-1 from on the tenant on July 25, 1989; or even if 
          considered timely, the filing of the appeal was not made by the 
          tenant of record as required.

          S.J.R. 7156, GE410032RO

               In answer to the petition, the tenant stated in substance that 
          his sister was named as a co-occupant on the original lease; that in 
          a letter dated September 1, 1990, he had authorized his sister to 
          act on his behalf; and that he had been stricken with a chronic 
          illness resulting in frequent hospitalization between 1989 and 1991 
          so that when his sister acted on his behalf, it was because he was 
          temporarily unable to deal with matters which were subject to 

               In a supplement to its petition, the owner stated in substance 
          that the owner was justified in not accepting the tenant's sister as 
          a tenant because the tenant's sister had no verifiable income; that 
          the tenant's sister had no right to become a tenant; that the 
          tenant's authorization of his sister to act on his behalf occurred 
          after the filing of the fair market rent appeal so that at the time 
          the fair market rent appeal was filed, the tenant's sister was not 
          authorized to act for him; that pursuant to Section 2527.1 of the 
          Rent Stabilization Code, the fair market rent appeal should have 
          been dismissed because it was not verified or affirmed by the tenant 
          himself; that the clear weight of the testimony at the hearing 
          discloses that the tenant was served with the RR-1 form in July 1989 
          so that in any event the fair market rent appeal filed in November, 
          1989 was not timely; that the owner's representative Mr. Sbiroli 
          kept a copy of the RR-1 form while giving the original to the 
          tenant; that the signature of the tenant on the owner's copy of the 
          RR-1 form presumes receipt of said form; and that the tenant's 
          generic statement that he did not receive the form is not enough to 
          overcome the presumption created by his signature, that he did 
          receive the form.

               Subsequently, the attorney representing the tenant's sister 
          advised that the tenant had recently died.

               The Commissioner is of the opinion that this petition should be 

               Section 2522.3 of the Rent Stabilization Code provides in 
          pertinent part that a fair market rent appeal shall be dismissed if 
          the appeal is filed more than 90 days after the service of the 
          Initial Apartment Registration (RR-1 form).

               In the instant case, the owner's contention that it served the 
          RR-1 form on the tenant of record by personal service on July 25, 
          1989 was examined by the Administrative Law Judge in a hearing at 
          which the tenant's statement that he did not receive the RR-1 form 
          at such time was found to be credible by the Administrative Law 
          Judge.  The fact that the tenant signed a copy of the RR-1 form 
          indicating receipt does not establish that the tenant in fact 
          received such form.  It is noted that such evidence was considered 
          by the Administrative Law Judge and found insufficient to establish 

          actual receipt by the tenant.  Accordingly, this contention of the 

          S.J.R. 7156, GE410032RO

          owner must be rejected and therefore the fair market rent appeal 
          filed in November 1989 must be considered timely filed since the 
          tenant was not properly served with the RR-1 form until October 14, 
          1989 when it was served by certified mail.

               The owner's contention that the fair market rent appeal filed 
          by the tenant's sister was fatally defective and should have been 
          dismissed is without merit.  It is noted that such appeal was filed 
          approximately 35 days after service of the RR-1 form by certified 
          mail on October 14, 1989.  Therefore, if such appeal had been 
          dismissed forthwith because the tenant of record did not file it, 
          the tenant of record would still have had time within the ninety day 
          period to file a fair market rent appeal in his own name.  Moreover, 
          it must be considered that the tenant of record's affidavit 
          authorizing his sister to act on his behalf after the DHCR requested 
          proof of authorization served to cure any defect in the original 
          appeal which did not contain such authorization.  Further, as 
          pointed out by the Administrative Law Judge, the tenant's sister 
          would clearly be entitled to a renewal lease under her own name 
          pursuant to Section 2523.5(b)(1) of the Rent Stabilization Code 
          should the tenant of record vacate.  Accordingly, the Commissioner 
          is of the opinion that based on all the facts in this case as 
          outlined above, the fair market rent appeal filed by the tenant's 
          sister was not fatally defective and was properly considered on the 
          merits.  Finally, it is noted that the owner was informed of the 
          finding of the Administrative Law Judge that the fair market rent 
          appeal would be considered as valid and timely filed prior to the 
          issuance of the Rent Administrator's order and afforded an 
          opportunity to submit comparability data and / or other evidence on 
          the merits of the fair market rent appeal.   

               The owner is directed to roll back the rent to the lawful 
          stabilized rent consistent with this decision and to refund or fully 
          credit against future rents over a period not exceeding six months 
          from the date of receipt of this order, the excess rent collected by 
          the owner.

               In the event the owner does not take appropriate action to 
          comply within sixty (60) days from the date of issuance of this 
          order, the tenant's estate may credit the excess rent collected by 
          the owner against the next month(s) rent until fully offset.

               The owner is directed to reflect the findings and 
          determinations made in this order on all future registration 
          statements, including those for the current year if not already 
          filed, citing this order as the basis for the change.  Registration 
          statements already on file, however, should not be amended to 
          reflect the findings and determinations made in this order.  The 
          owner is further directed to adjust subsequent rents to an amount no 
          greater than that determined by this order plus any lawful 


               THEREFORE, in accordance with the provisions of the Rent 

          S.J.R. 7156, GE410032RO

          Stabilization Law and Code, it is

               ORDERED, that this petition for administrative review be, and 
          the same hereby is, denied, and, that the order of the Rent 
          Administrator be, and the same hereby is, affirmed.

                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner



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