Court Invalidates DHCR Policy on Reconsideration Requests

Facts: Tenant Protection Regulation (TPR) section 2507.8 states that the DHCR can modify, supersede, or revoke any order issued by the DHCR when the order results from illegality, irregularity in vital matters, or fraud. Landlords or tenants can request reconsideration of DHCR orders on these grounds. In Policy Statement 91-5, the DHCR set time limits for filing requests for reconsideration. Westchester landlord challenged the DHCR's policy after his request for reconsideration was denied as untimely. Court: Landlord wins. Policy Statement 91-5 is invalid. The policy statement doesn't merely clarify or interpret the tenant protection regulation. Instead, it changes the regulation. The policy statement singles out irregularity in a vital matter. And, the policy says that requests for reconsideration on this ground must be made within 60 or 90 days and that landlords or tenants filing late must justify why they didn't file sooner. The regulation doesn't treat irregularity in a vital manner differently from illegality or fraud as a ground for requesting reconsideration. So, the policy statement can't do this.

Maher v. New York State Division of Housing and Community Renewal: 601 NYS2d 667 (8/18/93) (Sup. Ct. Westchester; Scarpino, J)