HJ110014-17RP, SJR 6951
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 : S.J.R. NO. 6951
APPEALS OF ADMINISTRATIVE REVIEW
DOCKET NO.HJ110014RP,
HJ110015RP, HJ110016RP
HJ110017RP (BD110146RO,
SANTINO DI FIORE AND BD110379RO, BE110068RT
KENNETH LONG, BD110123RT)
: DRO DOCKET NO.Q31220584R
PETITIONERS :
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ORDER AND OPINION DENYING OWNER'S PETITION FOR ADMINISTRATIVE AND
GRANTING TENANT'S PETITION FOR ADMINISTRATIVE REVIEW AND
TERMINATING DUPLICATE PROCEEDINGS AFTER REOPENING PURSUANT TO
JUDGMENT OF COURT
On April 6 and 30, 1987, the above-named petitioner-owner and
tenant filed Petitions for Administrative Review against an order
issued on April 1, 1987, by the Rent Administrator, 10 Columbus
Circle New York, New York, concerning the housing accommodations
known as 30-70 48th Street, Long Island City, New York, Apartment
No. 2J, wherein the Rent Administrator determined that the owner had
overcharged the tenant.
The Commissioner issued an Order and Opinion on November 6,
1990 denying the owner's and granting the tenant's petitions and
terminating duplicate proceedings.
Subsequently, the owner requested reopening of the proceeding
and reconsideration of the November 6, 1990 order. By order issued
June 21, 1991, an Order was issued granting the owner's request for
reconsideration and reopening the proceeding based on a finding that
the failure to send the November 6, 1990 order to the 1990
registered address for the owner constituted an irregularity in a
vital matter. The reopening was for the purpose of serving the
order on the owner at the last registered address and to reconsider
the original petition for administrative review based upon rent
ledgers which the owner claims he did not have before. On August
21, 1991, the Commissioner issued an Order and Opinion reissuing the
Order and Opinion issued on November 6, 1990 but serving the owner
at its last registered address.
Subsequent thereto, the petitioner-owner filed a petition in
the Supreme Court pursuant to Article 78 of the Civil Practice Law
and Rules alleging in substance that he was not served with the
order granting reconsideration or the August 21, 1991 PAR order. It
HJ110014-17RP, SJR 6951
appears that said orders were mailed to the owner at P.O. Box 2505
rather than the correct P.O. Box 5205. The proceeding was then
remitted to the DHCR for further consideration.
After a careful consideration of the evidence of record, the
Commissioner is of the opinion that aside from serving the owner at
his last registered address - 20-64 31 Street, Apt. A6, Long Island
City, New York, 11105, and also at his P.O. Box 5205, Long Island
City, New York, 11105, and at his attorney's address, the November
6, 1990 order should be reissued without any modifications.
The owner had ample opportunity to submit the rent ledgers
referred to by him in his reopening request. The tenant's
overcharge complaint was filed in March 1984 and during the three
years that it was pending before the Administrator, the owner failed
to submit complete rent records despite repeated requests to do so.
The owner did submit leases with his petition with the exception of
the complaining tenant's vacancy lease and the prior tenant's last
lease and during the three years that the petition was pending, the
owner did not refer to the missing rent ledgers that he now wants
considered.
Pursuant to Section 2529.6 of the Rent Stabilization Code, the
scope of review in administrative appeals is limited to facts or
evidence before the Rent Administrator unless it is established that
certain facts or evidence could not reasonable have been included in
the proceeding prior to the issuance of the order being appealed.
In this case, not only did the owner not submit the rent ledgers to
the Administrator, he did not submit them to the Commissioner while
the petition was pending, but only submitted them with the request
for reconsideration and has offered no explanation as to why they
were not available before.
It is also well settled that there must be finality in
administrative proceedings and once a final determination is made by
the Commissioner, it cannot be modified or revoked unless it was the
result of illegality, irregularity in a vital matter or fraud. As
the reopening order noted, the only irregularity in this proceeding
was the failure to serve the owner with a copy of the order at the
address last registered with the Division. The order is being
reissued solely to correct that defect, but is otherwise unchanged.
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.
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The Commissioner has determined in this Order and Opinion that
the owner collected overcharges of $12,113.86. This Order may, upon
expiration of the period for seeking review of this Order and
Opinion pursuant to Article Seventy-eight of the Civil Practice Law
and Rules, be filed and enforced as a judgment or not in excess of
twenty percent per month of the overcharge may be offset against any
rent thereafter due the owner. Where the tenant credits the
overcharge, the tenant may add to the overcharge, or where the
tenant files this Order as a judgment, the County Clerk may add to
the overcharge, interest at the rate payable on a judgment pursuant
to section 5004 of the Civil Practice Law and Rules from the
issuance date of the Rent Administrator's Order to the issuance date
of the Commissioner's Order.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that the Commissioner's order and opinion issued on
November 6, 1990 be, and the same hereby is, reissued. Said
November 6, 1990 order is attached hereto. In addition, a copy of
the June 21, 1991 reopening order is also attached hereto.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
HJ110014-17RP, SJR 6951
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