Tenants' Article 78 Appeal Dismissed as Untimely

(Decision submitted by Karen Schwartz-Sidrane of the Hewlett, N.Y., law firm of Sidrane & Schwartz-Sidrane, LLP, attorneys for the landlord.)

The DHCR ruled for landlord in a long-term dispute with rent-controlled tenants over the application of the standard MBR formula to buildings rehabilitated with the assistance of governmental financing. Landlord had argued that the standard MBR formula, which resulted in rent decreases, was contrary to rent control regulations, which specifically excluded them from the standard calculation. Tenants then filed an Article 78 court appeal, which the court dismissed as untimely. Tenants were required by law to file the Article 78 petition within 60 days of the issuance of the DHCR's PAR decision. Tenants claimed that they never received notice of the PAR orders. But DHCR personnel submitted sworn statements to the court detailing the agency's mailing procedures in connection with the order in question. Proof that a regular office practice and procedure was followed for mailings raises a presumption of receipt and couldn't be rebutted by tenants' bare denial of receipt.

Tenant Association of 100 Broadway and 381 Berry v. DHCR: Index No. 19114/11 (Sup. Ct. Kings; 2/5/13; Lewis, J) [10-pg. doc.]