Docket Number: DD-210146-RO
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.: DD 210146-RO
:
PRESLER JEANTY, DRO DOCKET NO.: 051319
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On May 17, 1989, the Commissioner issued an order dismissing for the
untimeliness a Petition for Administrative Review (PAR) filed on
April 10, 1989 by the above named petitioner owner against an order
issued on January 25, 1989 by the Rent Administrator of the 10
Columbus Circle District Rent office, concerning the housing
accommodations known as 90 Greene Avenue, Apartment 1R, Brooklyn,
New York 11238, wherein the Administrator, determined the tenant's
objection to the 1984 rent registration, found overcharges and
ordered a refund.
Subsequent thereto, the owner filed a petition in the Supreme Court
pursuant to Article 78 of the Civil Practice Law and Rules,
contending that the Commissioner improperly measured the thirty-five
(35) day limitation period for filing an administrative appeal (PAR)
from the date of issuance stamped on the Administrators order. In
an order dated October 2, 1990, Justice Lonchein remitted the
proceedings to the Division for a redetermination as to whether the
Petition for Administrative Review was timely if measured from the
date of receipt, and, if so, for further proceedings.
In light of the petitioner's statement that it did not receive a
copy of the owner's copy of the January 25, 1989, and had not become
aware of the order until the tenant provided a copy until March 16,
1989, Justice Lonchein's directive to measure the applicable
limitation from the date on which the owner received the order
compels the Commissioner to deem the administrative appeal timely;
i.e. if the owner did not receive the order, the limitation period
could not have begun to run. Accordingly, the Commissioner's order
dismissing the owner's PAR is revoked.
The tenant commenced these proceedings on September 24, 1984 by
filing an objection to the owner's initial 1984 rent registration
claiming that the April 1, 1984 rent was not the legal rent and that
there was an overcharge.
The owner responded on July 1, 1986 that the tenant had not been
overcharged, and that the apartment had been completely renovated.
Docket Number: DD-210146-RO
In response to a request dated January 21, 1987 for documentation to
substantiate the base date rent for the subject apartment, the owner
by a letter dated February 16, 1987, advised that the tenant took
possession on January 1, 1983 pursuant to one year lease. The owner
indicated that the apartment was completely renovated and that there
had been installed a new bathroom, stove, sink, refrigerator, wall
cabinet, floor and ceiling.
The owner's letter also stated that the owner had previously been
notified by the Division that the tenant's objection had been
dismissed. In fact, an order, issued on July 10, 1986, under Docket
Number 030183, dismissing the tenant's objection to the apartment
registration, on the grounds that the objection was received 122
days after receipt of the registration; the law required that the
objection be filed within (90) days after the receipt of the
registration. An examination of the records further revealed that
the Administrator had established duplicate case dockets under
Docket Number 030183 and Docket Number 051319. The records also
reveals that although the tenant did not seek Administrative Review
of the Administrator's order dismissing the tenant's objection under
Docket Number 030183. Case Docket Number 051319, which is the
subject matter of this appeal, remained open, pending further
processing.
On October 14, 1989, the Administrator, in connection with the
proceedings under Docket Number 051319, requested the owner to
submit a copy of the dismissal order. By a separate notice of same
date, the owner was again requested to substantiate the base date
rent and to submit proof, in the form of bills, cancelled checks,
etc., to substantiate the cost of any improvements that would affect
the rent. There is no record that the owner responded to either
request.
On January 25, 1989 the Administrator issued the order herein under
appeal. Based on a finding that owner could not submit the leases
from April 1, 1980, the Administrator computed the legal stabilized
rent to be $400.87, effective January 1, 1983, by using the average
stabilized rent, determined that the owner collected overcharges
commencing January 1, 1983, and ordered a refund of $21,688.46
including treble damages.
In the petition, the owner reiterates that improvements were done
while the apartment was vacant, and that the tenant was the first
person renting the apartment since the renovation. In a cover
letter submitted with the PAR, the petitioner also denies even
receiving a notice of the proceedings below, which is the subject of
this appeal, and requests an opportunity to provide documentation to
establish that the tenant was not overcharged.
After careful consideration, the Commissioner is of the opinion that
the petition should be granted.
As previously noted, the Administrator failed to take note of a
previous order under Docket Number 30183 dismissing the tenant's
Docket Number: DD-210146-RO
objection for failure to file the objection within 90 days after
receipt of registration.
Although not raised as an issue in the owner's appeal, the tenant's
objection below, under Docket Number 051319, dated September 24,
1984, herein under review, was also untimely, as the tenant stated
therein that the owner hand delivered the apartment registration to
the tenant on June 1, 1984, i.e., 115 days prior to tenant's
objection.
In light of the Administrator's pre-existing final order dismissing
the objection under Docket Number 030183 for failure to file within
90 days after the receipt for the registration, the Administrator's
disregard of said order, and the shift of the burden of proof to the
owner to establish the dismissal, the Commissioner finds that the
Administrator's overcharge determination was unwarranted.
Accordingly the Administrator's determination is revoked in its
entirety, and the tenant's objection is dismissed as untimely, in
accordance with the prior order under Docket Number 030138.
In any arrears are owed to the owner by the tenant as a result of
this order, the tenant may pay such areas in equal monthly
installments over the course of the next twenty-four (24) months.
THEREFORE, in accordance with the Chapter 403 of the Law of 1983, as
amended by Chapter 102 of the Laws of 1984, it is
ORDERED, that this petition for be, and the same hereby is,
affirmed, and that the Administrator's order be, and the same hereby
revoked.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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