STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. DC410407RT
: DRO DOCKET NO.54677
ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
On February 23, 1989, the above-named petitioner-tenant timely
refiled a Petition for Administrative Review against an order issued
on December 29, 1988, by the Rent Administrator, 10 Columbus Circle,
New York, New York, concerning the housing accommodations known as
100 Central Park South, New York, New York, Apartment No. 13A
wherein the Rent Administrator determined that the tenant's
complaint should be dismissed because it was not timely filed. The
tenant incorrectly attached a copy of another Rent Administrator's
order to the refiled petition - docket 54092 issued on August 31,
1988. The tenant had attached the correct Rent Administrator's
order to her original petition - docket 54677 issued on December 29,
The Administrative Appeal is being determined pursuant to the
provisions of Section 2528.2 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 originally commenced on February 27, 1985
by the filing of a tenant's objection to registration in which the
tenant stated inter alia that the apartment had not been registered
by the owner. The owner was served with a copy of the tenant's
complaint but not directed to submit proof of service of the
apartment registration on the tenant.
In Docket Number 54677, the Rent Administrator dismissed the
tenant's objection on the basis that it was not filed within ninety
days of the date of service of the apartment registration.
In this petition, the tenant alleges in substance that she "did
not receive a proper registration".
In answer to the tenant's petition, the owner stated inter alia
that the petition should be dismissed as untimely because the Rent
Administrator's order attached to the petition was dated August 31,
The Commissioner is of the opinion that this proceeding should
be remanded to determine whether the tenant was properly served with
the apartment registration.
At the outset, the Commissioner is of the opinion that the
tenant's petition was timely filed in that it was originally filed
within 35 days of the issuance of the Rent Administrator's order and
timely refiled after the original petition was rejected. The fact
that an incorrect order was attached to the refiled petition does
not establish that the refiled petition was not timely.
Turning to the merits, pursuant to Sections 2522.3(c)(2),
2526.1(a)(2)(ii), and 2528.2(d) of the Rent Stabilization Code, a
tenant must file a challenge to the initial apartment registration
(overcharge complaint or fair market rent appeal) within 90 days of
service of the registration form on the tenant by certified mail.
Section 2528.2(d) further provides that for registrations served
prior to the effective date of that section, any method of service
permitted by the DHCR at the time of service shall be deemed to have
the same effect as service by certified mailing.
The Division's instructions for service of the initial
apartment registration on the tenant by the owner provided for hand
delivery of the envelope with signed receipt, use of the Post Office
"Carrier Route Pre-Sort" Service through a bonded mailing house as
evidenced by the Post Office date-certification of the number of
pieces received from the mailing house for each building and the
mailing house addressee list or regular first class mail documented
by Post Office form #P.O. 3877.
DHCR instructions further provide that the proof(s) of receipt,
properly signed and dated (by the tenant, post office, and the
mailing house, as appropriate) would be considered adequate by the
DHCR to establish the tenant's 90 day challenge period, which would
begin on the date of receipt.
In the instant case, the owner was not given an opportunity to
submit proof of any of the above methods of service on the tenant.
It was error for the Rent Administrator to decide that the tenant
was properly served with the apartment registration without such
proof. Accordingly, this proceeding is being remanded to afford the
owner the opportunity to submit the aforementioned proof of service
of the apartment registration on the tenant and to allow the tenant
to comment on any proof submitted by the owner.
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.
JOSEPH A. D'AGOSTA