Docket No. HK430005RP(EK430306RO)
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. 7086
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. HK430005RP
(EK430306RO)
DISTRICT RENT
PARCEL 242 INC., ADMINISTRATOR'S DOCKET
NO. DF420033BO(7MD03202M)
PETITIONER
------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On November 30, 1990, the above-named landlord filed a
petition for administrative review of an order issued on November
2, 1990 by a Rent Administrator concerning various housing
accommodations in the premises known as 242 East 72nd Street, New
York, New York.
On June 10, 1993, the Commissioner issued an order and opinion
denying the landlord's petition, under Docket No. EK430306RO.
Subsequently, the landlord commenced a proceeding in the
Supreme Court of the State of New York pursuant to Article 78 of
the Civil Practice Law and Rules, seeking review of the above-
mentioned Commissioner's order.
After considering the Article 78 petition, the Court issued an
order remitting the proceeding to the New York State Division of
Housing and Community Renewal (D.H.C.R.) for further consideration.
The rent agency redocketed the proceeding under Docket No.
HK430005RP.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issues raised by the petition for administrative
Docket No. HK430005RP(EK430306RO)
review.
The Administrator issued an "Interim Order" on March 10, 1987
under Docket No. 7MI03202M which granted the landlord maximum base
rent (M.B.R.) increases for the 1986-1987 period effective January
1, 1986.
The Administrator mailed a final order on June 29, 1988 under
Docket No. 7M03202M which granted the landlord M.B.R. increases for
the above-mentioned period. The above-mentioned order noted that
the landlord is not eligible for an increase in the M.B.R. unless
the landlord, among other things, served a copy of the final order,
within sixty days of the aforementioned mailing date, "on all
affected tenants" by either first-class mail with official proof of
mailing,or by personal delivery with an acknowledgement of the
tenant; and that the landlord submit to the D.H.C.R. an affidavit
of service noting the date of service on the tenants.
In a notice mailed to the subject landlord on February 1,
1989, the Administrator stated that: "As a result of owner's
failure to provide DHCR with an Affidavit of Service to tenants of
the Final Order of Eligibility-Maximum Base Rent 1986-1987, copy
attached, the Rent Administrator proposes to re-open the above
docket."
The Administrator issued an order on May 5, 1989 under Docket
No. 7MD03202M which revoked the above-mentioned final and interim
M.B.R. order of eligibility for the 1986-1987 period as the
Administrator determined that the landlord did not submit, as
required, the aforementioned affidavit of service.
On June 7, 1989, the subject landlord filed a challenge to the
above-mentioned Administrator's order. In its challenge the
subject landlord stated, among other things, that:
The 'Order of Eligibility' was not received until
February 1989, when the owner received DHCR's Notice
dated Feb. 1, 1989 inquiring about whether the 'Order of
Eligibility' had been served. At that time the owner
immediately served the 'Order of Eligibility' upon all of
the Rent Controlled Tenants by certificate of mailing and
prepared an affidavit of such service for submission with
copies of the postal proof of mailing upon the DHCR.
To its challenge the subject landlord attached, among other
things, a copy of the landlord's affidavit of service of the 1986-
1987 final M.B.R. order of eligibility which was allegedly mailed
to the subject tenants on February 22, 1989, and a copy of a form
promulgated by the Post Office which contains the names and
apartment numbers of the subject tenants; the postage to allegedly
mail the aforementioned final M.B.R. order of eligibility to each
tenant, several copies of 25 cents stamps affixed to the form, and
Docket No. HK430005RP(EK430306RO)
a copy of an U.S Postal Service Postmark of February 22, 1989.
In the order under review herein issued on November 2, 1990
under Docket No. DF420033BO, the Administrator affirmed the prior
order issued under Docket No. 7MD03202M as it was determined that
the landlord's affidavit of service was filed late.
In its petition the subject landlord asserts, among other
things, that the subject landlord did not receive the final M.B.R.
order of eligibility for the 1986-1987 period until February 1,
1989; that when the landlord did receive the above-mentioned M.B.R.
order of eligibility it was served upon all of the rent controlled
tenants by "certificate of mailing," and that the landlord
"prepared an affidavit of such service for submission with copies
of the postal proof of mailing upon the DHCR," and that the
landlord has met all statutory requirements to qualify for M.B.R.
increases for the 1986-1987 period.
Some tenants submitted responses which assert, among other
things, that the "documents" which the landlord alleged it mailed
were received by the tenants, and that if the landlord's petition
were granted the tenants would suffer a financial hardship in
having to pay retroactive rents.
After careful consideration, the Commissioner finds that the
landlord's petition should be granted.
The Commissioner is of the opinion that the record is not
clear as to whether on June 29, 1988 the rent agency served the
subject landlord a copy of the aforementioned final order issued
under Docket No. 7M03202M which granted the landlord M.B.R.
increases for the 1986-1987 period.
As previously noted, the subject landlord pointed out that it
was first served with the aforementioned final M.B.R. order of
eligibility when it received the aforementioned Administrator's
notice mailed to it on February 1, 1989.
The Commissioner finds that the subject tenants do not submit
any evidence to rebut the landlord's assertions in this proceeding.
Accordingly, the Commissioner finds that the time for the
subject landlord to have complied with the terms and conditions
noted in the aforementioned final M.B.R. order of eligibility was
within sixty days of February 1, 1989.
As previously noted, the subject landlord pointed out that it
served the subject tenants on February 22, 1989 a copy of the
aforementioned final M.B.R. order of eligibility for the 1986-1987
period.
Based on the evidence submitted in this proceeding, the
Docket No. HK430005RP(EK430306RO)
Commissioner finds that the subject landlord has met its burden of
proof in showing that it served the subject tenants on February 22,
1989 the aforementioned final M.B.R. order of eligibility.
The record reflects that the subject landlord submitted to the
rent agency an affidavit of service of the aforementioned final
M.B.R. order of eligibility which was mailed to the subject tenants
on February 22, 1989.
Accordingly, the Commissioner finds that the subject landlord
has met the terms and conditions to qualify for M.B.R. increases
for the 1986-1987 period effective January 1, 1986.
The Commissioner points out that none of the subject tenants
dispute receiving a copy of the aforementioned final M.B.R. order
of eligibility or the interim M.B.R. order of eligibility.
Accordingly, the Commissioner finds that the Administrator's
order under review herein issued on November 2, 1990 under Docket
No. DF420033BO(7MD03202M) should be revoked. The Commissioner
further finds that the Administrator's order issued under Docket
No. 7M03202M which granted the landlord M.B.R. increases for the
1986-1987 period should be affirmed.
As to the tenants assertion that having to pay retroactive
rents would be a financial hardship, the Commissioner finds that
that fact does not bar the landlord from collecting increases in
the maximum rent. The Commissioner points out that if it is a
financial hardship for any of the tenants who are senior citizens
to pay their rent, their remedy is to apply for a Senior Citizen
Rent Income Exemption (S.C.R.I.E.) with the applicable City agency.
THEREFORE, in accordance with the City Rent and Rehabilitation
Law and Rent and Eviction Regulations, it is
ORDERED, that the landlord's petition be, and the same hereby
is, granted, and that the Administrator's order, issued under
Docket No. DF420033BO(7MD03202M), be, and the same hereby is,
revoked; and it is
FURTHER ORDERED, that the Administrator's order issued on June
29, 1988 under Docket No. 7M03202M which granted the landlord
M.B.R. increases for the 1986-1987 period effective January 1, 1986
should be affirmed; and it is
FURTHER ORDERED, that the subject tenants may pay any
retroactive rent arising as a result of this order in one or more
lump sum payments or, at the tenants' option, in equal monthly
installments equal in number to the number of months between June
1, 1989 and the date of issuance of this order, and it is
FURTHER ORDERED, that if a subject tenant vacates after the
Docket No. HK430005RP(EK430306RO)
issuance of this order that tenant's retroactive rent shall be due
immediately.
ISSUED:
Joseph A. D'Agosta
Deputy Commissioner
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