Landlord Didn't Get DRA Order

(Decision submitted by Blaine Schwadel of the Manhattan law firm of Rosenberg & Estis, PC, attorneys for the landlord.) Facts: Tenant filed a fair market rent appeal in 1992, challenging her $2,500 per month rent. The DRA ruled for tenant in 1995, reduced her rent to $1,470, and ordered landlord to refund $66,000. The DHCR mailed a copy of the order to landlord. But the mailing was returned to the DHCR by the post office because landlord's address didn't show through the envelope window. Landlord wrote to the DHCR several times after that, stating that tenant claimed to have received the DRA's order and requesting a copy of the order. The DHCR didn't respond. In 1999, tenant filed a new complaint because landlord didn't renew her lease based on the reduced rent stated in the fair market rent appeal order. The DRA ruled for tenant, and landlord appealed. Landlord pointed out that it never received the 1995 order. The DHCR then sent landlord a copy of the 1995 order. Landlord filed a PAR within 35 days of receipt. The DHCR accepted landlord's PAR as filed on time and modified the fair market rent appeal ruling. The fair market rent was $2,200, and the refund due was only $21,000. Tenant then filed a court appeal, claiming that landlord's PAR wasn't filed on time. The DHCR asked the court for permission to take the case back for reconsideration. The court granted the DHCR's request. On remand, the DHCR ruled against landlord, now finding that landlord's PAR wasn't filed on time. Landlord appealed. The court found that the DHCR's decision was reasonable. Landlord appealed again to a higher court. Court: Landlord wins. The DHCR had the discretion to excuse landlord's late filing of its PAR. And in this case, there was good reason to permit the late filing. The DHCR admitted that landlord couldn't have received notice of the 1995 order from the agency because its mailing was returned. The DHCR never responded to landlord's request for a copy of the order until the issue came up in a new case. The DHCR then permitted landlord to file a late PAR. The DHCR then unreasonably reversed its position and unfairly punished landlord for its mistake.

Jemrock Realty Co. LLC v. DHCR: NYLJ, 5/17/04, p. 26, col. 4 (App. Div. 1 Dept.; Tom, JP, Mazarelli, Saxe, Marlow, JJ)