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. 7156
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.GE410032RO
: DRO DOCKET NO.ZDK510191R
WADSWORTH VENTURA ASSOCIATES TENANT: RAMON MORALES
PETITIONER :
------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
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
appeals.
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
appeal.
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
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 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
deadlines.
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
denied.
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
increases.
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.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
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