Tenants Claim They Never Received PAR Decision

Landlord asked the DHCR to establish maximum base rents (MBRs) for rent-controlled tenants in its building complex. The DHCR set the rents using the standard MBR formula. Landlord then sought Article 78 judicial review of the DHCR's decision, claiming that since tenants' apartments were located in buildings that had been rehabilitated with the assistance of governmental financing, they were expressly excluded by the rent control regulations from having their MBRs determined using the standard MBR formula. The DHCR had ruled that since landlord applied for a computed MBR based upon the standard MBR formula more than 30 years after the initial MBRs had been set, the DHCR could use the standard MBR formula. The DHCR also denied landlord's request for reconsideration of its order denying the PAR. Landlord and the DHCR settled the Article 78 proceeding by agreeing to send the case back to the DHCR for reconsideration. The DHCR then ruled for landlord. Under Rent & Eviction Regulation Section 2201.4(A), the MBRs were to be calculated under an alternate method. Tenants later filed an Article 78 petition for judicial review of the DHCR's final decision. The DHCR asked the court to dismiss the case because the appeal was filed more than 60 days after the DHCR's decision was issued. Tenants claimed that they never received the decision. But DHCR employees submitted sworn statements outlining the procedures used generally in the agency's mailroom to process DHCR decisions for mailing. The employees also noted that the DHCR order in this case had been date stamped at the time of mailing in accordance with their procedure. They also stated that the post office picked up mail at the DHCR every weekday at about 5 p.m.  The court ruled for the DHCR and dismissed the case. Proof that a regular office practice and procedure was followed in connection with mailing the DHCR's decision in this case raised a presumption of receipt that wasn't rebutted by tenants' mere denial. 

Garcia v. DHCR: Index No. 19114/11, NYLJ No. 1202589699488 (Sup. Ct. Kings; 2/8/13; Lewis, J)