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 : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. CG210106RT
: DRO DOCKET NO. 57438
WILLIAM AND ROSE SLUTSKY
PETITIONERS :
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ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
On July 1, 1988, the above-named petitioner-tenants filed a
Petition for Administrative Review against an order issued on June
24, 1988, by the Rent Administrator, 10 Columbus Circle, New York,
New York, concerning the housing accommodations known as 2245 East
19th Street, Brooklyn, New York, Apartment No. 5J, wherein the Rent
Administrator determined that the tenants had not been overcharged.
The Administrative Appeal is being determined pursuant to the
provisions of Section 26 of the former Rent Stabilization Code and
Section 2522.3 of the current 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 originally commenced by the tenants' filing
of an Objection to Rent in May 1985. In such Objection, the tenants
stated in substance that they first moved to the subject apartment
on January 1, 1985 at a rental of $470.00 per month.
In answer to the Tenants' Objection, the owner stated in
substance that the tenants herein were the first stabilized tenants
after the subject apartment had been vacancy decontrolled from the
Rent Control Law.
Subsequently, a copy of the tenants' initial lease was
submitted. Such lease included the clause "Tenant acknowledges
receipt of CAB notice form DC-2".
In Order Number 57438, the Rent Administrator on the basis of
the rental history from January 1, 1985, determined that no rent
overcharge had occurred and that the tenants had conceded that they
had received a copy of the DC-2 Notice along with their initial
lease.
In this petition, the tenants allege in substance that they
never received a copy of the DC-2 Notice despite the clause to that
effect in their initial lease.
The Commissioner is of the opinion that this proceeding should
be remanded to treat the tenants' objection as a fair market rent
appeal filed subsequent to April 1, 1984.
Section 26 of the former Rent Stabilization Code provides in
pertinent part that all tenants who are entitled to file a fair
market rent appeal shall be entitled to receive notice of such rent
together with a statement as to the right of appeal (DC-2 Notice).
Such notice shall be served by the owner upon every such tenant by
certified mail. Section 25B of the former Rent Stabilization Code
provides in pertinent part that a fair market rent appeal must be
filed within ninety (90) days after the tenant receives the DC-2
notice. Further the Court of Appeals in Alcoma Corp. v. New York
State Division of Housing and Community Renewal, (79 N.Y. 2d 834,
1992), found that the DHCR interpretation of Sections 25B and 26
requiring service of the DC-2 notice by certified mail before the 90
limitation period for filing a fair market rent appeal commences to
run to be reasonable and rational.
Section 2522.3(a) of the current Rent Stabilization Code
provides in pertinent part that where the first tenant taking
occupancy after December 31, 1973, of a housing accommodation
previously subject to the City Rent Law, was served with the notice
required by section 26 of the former Rent Stabilization Code, the
time within which such tenant may file a Fair Market Rent Appeal is
limited to 90 days after such notice was mailed to the tenant by the
owner by certified mail.
In the instant case, the evidence of record does not disclose
that the owner served the DC-2 notice by certified mail as the Rent
Stabilization Code mandates and as upheld by the Court of Appeals.
Moreover, the tenant has denied having been served with the DC-2
notice in the manner the owner alleges. Accordingly, this
proceeding must be remanded to treat the tenants' objection as a
fair market rent appeal on the merits filed subsequent to April 1,
1984. All parties are to be notified and given a chance to submit
evidence in such remanded proceeding.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and
the same hereby is, granted to the extent of remanding this
proceeding to the Rent Administrator for further processing in
accordance with this order and opinion.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
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