Docket Number: BC-410222-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.: BC 410222-RO
:
DITMAS MANAGEMENT CO., DRO DOCKET NO.: 25480
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On March 17, 1987, the above-named petitioner-owner filed a Petition
for Administrative Review against an order of the Rent
Administrator, 10 Columbus Circle, New York, NY issued February 18,
1987. The order concerned housing accommodations known as Apartment
5-E, located at 140 East 7th Street, New York, New York. The
Administrator determined that the tenant had been overcharged.
The Commissioner has reviewed the record and carefully considered
that portion relevant to the issues raised by this appeal.
The tenant filed a timely objection to the 1984 Registration,
claiming that the registered rent of $330 per month was an
overcharge, that the apartment consists of one (1) room, not two (2)
rooms and that the building registration was not provided. The
tenant also explained that an overcharge complaint the tenant had
filed with the N.Y.C. Conciliation and Appeals Board (CAB) against
the former owner had been withdrawn by the tenant in accordance with
an out of court settlement negotiated with the prior owner in which
the tenant was given a new two year lease for $300 per month
commencing June 15, 1984 in return for the tenant withdrawing the
case filed with the CAB. The tenant stated that he wanted the 1984
registration to reflect this negotiated rental amount.
The owner responded by submitting a copy of the lease in effect on
April 1, 1980 the base rent date, and all leases subsequent thereto
and stated that the apartment contains one (1) room. The owner also
submitted a copy of a lease for a former tenant. This lease was
dated October 1, 1980 - September 30, 1982. However, the subject
tenant moved into the apartment on November 15, 1980. The owner
also asserted that as a result of the negotiated agreement between
the tenant and the former owner, the rent has been adjusted from
$330 to $300 per month and the tenant's application should be
dismissed as there is no overcharge.
The Administrator disallowed the lease for the former tenant on the
ground that that tenant never took occupancy. Determining that the
Docket Number: BC-410222-RO
complaining tenant had been overcharged, the Administrator directed
the owner to refund $3,349.74 in overcharges including interest and
excess security.
On appeal the owner claims the predecessor landlord and the tenant
entered into a settlement wherein a rental was agreed to for the
subject apartment. By reason of this settlement the tenant withdrew
a then pending rent overcharge complaint that had been filed with
the CAB. Despite this, the tenant then filed an objection to the
1984 registration. In that objection the tenant proceeded to
challenge the rent as well as state that the owner failed to provide
a building services registration form. According to petitioner the
settlement precluded the tenant from complaining about the rent.
The tenant filed a response to the petition wherein he acknowledged
that a settlement had been reached with the prior owner. His
purpose in filing the overcharge complaint was to correct the
apartment registration form. As a result of DHCR's investigation of
the rental history for this apartment, the tenant now knows that he
had been overcharged for more than he previously believed and that
he settled for with the previous owner. He requests the
Commissioner affirm the Rent Administrator's order.
After careful consideration of the evidence in the record the
Commissioner is of the opinion that the petition should be denied.
As a result of the settlement agreement entered into with the prior
owner, the tenant withdrew a pre-April 1, 1984 complaint and
relinquished a claim to certain rights for potential overcharges
associated with that claim. In exchange, the tenant was given a new
two year lease at a reduced rent.
That agreement has no effect on the tenant's subsequent objection to
the 1984 registration which, because an overcharge was alleged,
resulted in an examination of the rent records back to April 1, 1980
and a determination as to the lawful rent.
Pursuant to 9NYCRR 2520.13
"An agreement by the tenant to waive the bene-
fit of any provision of the RSL or this Code
is void; provided, however, that based upon a
negotiated settlement between the parties and
with the approval of the DHCR, or a court of
competent jurisdiction where a tenant is re-
presented by counsel, a tenant may withdraw,
with prejudice, any complaint pending before
the DHCR. Such settlement shall not be
binding upon any subsequent tenant, except to
the extent that the complaint being settled
is subject to the time limitations set forth
in the RSL and this Code."
This settlement was neither approved by DHCR nor a court of
competent jurisdiction.
The tenant herein has explained that the settlement reached with the
prior owner was part of a general rent strike by the tenants of the
Docket Number: BC-410222-RO
building and was negotiated "because of overwhelming evidence of
overcharge" by the prior owner. The tenant concedes that he was not
aware of what the lawful rent actually was for his apartment until
the Administrator so determined it. Since the agreement on which
the petitioner seeks to rely is being repudiated by the tenant and
was negotiated by the tenant without knowledge of his lawful rent,
and does not conform to the Code provision allowing a tenant to
waive his rights, it cannot serve to bar the tenant from entitlement
to the rent and overcharges established by the Administrator's
order.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied and
that the Rent Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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