ADM. REVIEW DOCKET NO. HK430006RP
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. 7097
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. HK430006RP
(EK430158RO)
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO. DE420093BO
THE ARGO CORPORATION, (7MD07914M)
PETITIONER
------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND REMANDING THE PROCEEDING TO THE RENT ADMINISTRATOR
On November 19, 1990, the above-named landlord filed a
petition for administrative review of an order issued on October
19, 1990 by a Rent Administrator concerning various housing
accommodations in the premises known as 304 West 75th Street, New
York, New York.
On June 17, 1993, the Commissioner issued an order and opinion
denying the landlord's petition, under Docket No. EK430158RO.
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.
HK430006RP.
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
review.
ADM. REVIEW DOCKET NO. HK430006RP
The Administrator issued an "Interim Order" on October 20,
1986 under Docket No. 7MI07914M which granted the landlord maximum
base rent (M.B.R.) increase for the 1986-1987 period effective
January 1, 1986.
The Administrator mailed a final order on June 29, 1988 under
Docket No. 7M07914M 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 December 30,
1988, 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 12, 1989 under Docket
No. 7MD07914M 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 May 31, 1989, the subject landlord filed a challenge to the
above-mentioned Administrator's order. In its challenge the
subject landlord asserted, among other things, that it did not
receive a copy of the aforementioned final M.B.R. order of
eligibility, and that it did not receive a copy of the
aforementioned notice relating to the landlord's failure to file
with the rent agency an affidavit of service.
In the order under review herein issued on October 19,1990
under Docket No. DE420093BO, the Administrator affirmed the prior
order issued under Docket No. 7MD07914M as it was determined that
the landlord did not file with the rent agency an affidavit of
service, as required.
In its petition the subject landlord reiterates its assertions
contained in its aforementioned challenge. In addition, the
ADM. REVIEW DOCKET NO. HK430006RP
subject landlord asserts, among other things, that as it has not
received the final M.B.R. order of eligibility, the landlord could
not have served a copy of it on the rent controlled tenant, and
that the rent controlled tenants were served a copy of the interim
order issued on October 20, 1986.
One tenant submitted a response, dated January 26, 1991, in
which he asserts, among other things, that the landlord's petition
should be denied.
After careful consideration, the Commissioner finds that the
landlord's petition should be granted in part and that this
proceeding should be remanded to the Administrator for further
review.
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. 7M07914M which granted the landlord M.B.R.
increases for the 1986-1987 period. The Commissioner is also of
the opinion that the record is not clear as to whether on December
30, 1988 the rent agency mailed the aforementioned notice
pertaining to the landlord's failure to file an affidavit of
service.
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 Administrator's
order under review herein issued under Docket No. DE420093BO
(7MD07914M) should be revoked. The Commissioner further finds that
the landlord's final M.B.R. order of eligibility for the 1986-1987
period should be reinstated.
The Commissioner is of the opinion that this proceeding
should be remanded to the Administrator for the ministerial act of
reissuing the landlord's final M.B.R. order of eligibility for the
1986-1987 period, which will result in a new issuance date.
The landlord is cautioned that its failure to comply with the
terms and conditions of the above-mentioned reissued order may
result in a revocation of that order.
The Commissioner finds that this order and opinion is issued
without prejudice to the right of the rent controlled tenants to
file a challenge to the order granting the landlord M.B.R.
increases for the 1986-1987 period, pursuant to the terms of the
ADM. REVIEW DOCKET NO. HK430006RP
final M.B.R. order of eligibility which will be reissued by the
Administrator at a later date.
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 in part, and that the Administrator's order issued
under Docket No. DE420093BO (7MD07914M), be, and the same hereby
is, revoked, and it is
FURTHER ORDERED, that this proceeding shall be remanded to the
Administrator for the ministerial act of reissuing the landlord's
final M.B.R. order of eligibility for the 1986-1987 period
effective January 1, 1986.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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