Alcoma Corp. v. New York State Division of Housing & Community Renewal

Order, Supreme Court, New York County (Carol Arber, J.) entered March 16, 1990, which, inter alia, denied petitioner’s CPLR article 78 petition seeking to annul an order of respondent State Division of Housing and Community Renewal ("DHCR”), affirmed, without costs. Respondent tenant entered into a lease for a one bedroom apartment at $1,650 per month with petitioner on September 15, 1982. Respondent was the first rent stabilized tenant in said apartment, the apartment having previously been controlled. The tenant filed a Fair Market Rent Appeal ("FMRA”). Petitioner landlord asserted that it had timely mailed the required notice to tenant (a "DC-2 Notice”) and that the tenant’s FMRA was defective as untimely. In February 1985, the DHCR rejected the owner’s defense, granted the tenant’s FMRA and lowered the monthly rent to $681.88. The landlord filed a Petition for Administrative Review ("PAR”) and the proceeding was remanded for a hearing. The Administrative Law Judge ("ALJ”) found that the landlord had sent the tenant the DC-2 Notice by regular mail, with a certificate of mailing in 1982, and that the tenant had failed to timely institute the FMRA. The District Rent Administrator upheld the ALJ’s findings, and the Deputy Commissioner affirmed said order. The tenant commenced an article 78 proceeding and Supreme Court remanded the matter for a determination as to whether the DC-2 Notice had been sent to tenant via certified mail. DHCR concluded that, although the DC-2 Notice had not been sent by certified mail as required by statute, the tenant had received the Notice and had failed to timely file the FMRA. The tenant sought reconsideration and DHCR reversed its prior determination upon the grounds that the DC-2 Notice had not been sent by certified mail as required by statute. Petitioner commenced this article 78 proceeding seeking to annul the DHCR’s final order as being arbitrary and capri [325] cious and sought discovery with regard to its allegation that the DHCR’s decision was based on the ex parte communications with the tenant and local politicians. The IAS court dismissed the landlord’s petition finding that the DHCR’s order was rational and the request for additional discovery was denied as moot. While petitioner claims that the tenant’s FMRA was untimely, it is undisputed that petitioner never notified the tenant by certified mail of her right to file a "FMRA”. Rent Stabilization Law (Administrative Code of City of New York) § 26-513 (d) (former § YY51-6.0.2 [d]) provides in respect to FMRA that the landlord shall give notice "by certified mail”. The statute is unambiguous, and it is undisputed that petitioner failed to properly serve the DC-2 Notice upon the tenant and thus, the tenant’s FMRA was not untimely. The order of the DHCR was rational and in accordance with the law and the IAS court properly upheld the determination. (See, Matter of Mid-State Mgt. Corp. v New York City Conciliation & Appeals Bd., 112 AD2d 72, 76, affd for reasons stated 66 NY2d 1032.) Further, where as herein, the Commissioner finds, that a prior "order was the result of * * * irregularity in vital matters” he is empowered "upon notice to all parties affected”, to "issue a superseding order modifying or revoking” the prior order (Rent Stabilization Code [9 NYCRR] § 2529.9; see, e.g., Luchetti v Office of Rent Control, 49 AD2d 532). We have considered petitioner’s other claims and find them to be of no merit. Concur—Ross, Kassal and Rubin, JJ.