DOCKET NUMBER: AL 410766-RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: AL 410766-RO
:
DRO DOCKET NO.: L 3114277-RT
PARK TOWERS SOUTH CDR 27,208
COMPANY, PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On December 24, 1986 the above named petitioner owner filed a Petition for
Administrative Review against an order of the Rent Administrator 10
Columbus Circle, New York, New York issued November 25, 1986. The order
concerned housing accommodations known as Apartment 12F located at 315
West 57th Street New York, New York. The Administrator dismissed the
tenants Fair Market Rent Appeal but found that an overcharge existed.
The tenant began this case on March 30, 1984 by filing both a Fair Market
Rent Adjustment application and an overcharge complaint. The petitioner
answered and supplied the proper rental history and documentation. The
Administrator first determined the Fair Market Rent Appeal issue. He
ruled that the subject premises had been subject to Rent Stabilization
since that law went into effect. Since rent control never applied, the
appeal was dismissed. The tenant filed no petition for Administrative
Review.
As regards the overcharge complaint, the Administrator established the
base rent at $360.00 for the lease term beginning May 1, 1977. A total
overcharge of $3535.70 including interest was calculated. The petitioner
urges reversal on three grounds. First, they note that the tenant wrote
a letter to the Administrator prior to this decision, requesting her
complaint be withdrawn with prejudice. The Administrator apparently
decided the case regardless of this letter. Second, the owner claims that
the Administrator violated Section 307(2) of the State Administrative
Procedure Act. Since the tenant had communicated her desire to withdraw
the case and the Administrator decided it anyway, reasons the owner, then
further communication between the tenant and DHCR must have occurred that
they were not informed of. Finally, petitioner claims that the
Administrator neglected the calculate electrical inclusion allowances in
determining the overcharge. After a careful review of the evidence in the
record, the Commissioner grants the petition.
The tenant in this proceeding communicated twice that she wished this case
closed. The first time was before the Administrators decision. Her
second request came in her answer to the petition herein. Normally, a
tenants rights and benefits under the Rent Stabilization Law and Code are
not waivable (See 9 NYCRR 2520.13). The exceptions to this rule occur
when a settlement has been negotiated that was either a product of DHCR
participation or "so ordered" by a court of competent jurisdiction. This
does not seem to have occurred here. The Commissioner may, however, look,
DOCKET NUMBER: AL 410766-RO
look at the settlement to see the circumstances under which it was
negotiated and its fairness. The petitioner recalculated the tenants rent
and found a $454.20 overcharge. They also reduced the rent. In
consideration of these acts, the tenant seems to have been willing to drop
her complaint. She expressed the desire to do so even after the
Administrator awarded her $3535.70 in rental overcharges. It would appear
that the tenant, who is the current occupant of the apartment, has
intelligently and without duress agreed to settle her case. The
Commissioner will, accordingly, abide by her wishes given the totality of
the circumstances of the case.
The Commissioner rejects the second argument made by petitioner. No other
communication was made by the tenant to DHCR thus no violation of Section
307(2) took place. Finally, the Commissioner notes that the owner appears
to be correct in the assertion that electrical allowance charges were
excluded. Because of the decision herein, however, it is not necessary to
recalculate the rent to take the extra amount into consideration.
If the current owner has already complied with the Administrator's order
and arrears are due and owing as a result of the present determination,
the tenant may pay off said arrears in twenty four monthly installments.
Should the tenant vacate after the issuance of this order or have
previously vacated, said arrears are payable immediately.
THEREFORE, in accordance with the Rent Stabilization Law and Code it is
ORDERED, that this petition be, and hereby is, granted and that the order
of the District Rent Administrator be, and hereby is, revoked.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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