STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BF 410298-RO
DRO DOCKET NO.: TC 051237-G
CORINNE L. WILSON CDR 30,376
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On June 23, 1987 the above named petitioner tenant filed a Petition for
Administrative Review against an order of the Rent Administrator 10
Columbus Circle, New York, New York issued June 1, 1987. The order
concerned housing accommodations known as Apartment 4-O located at 139
East 33rd Street, New York, New York. The Administrator determined that
petitioner had not been overcharged.
The tenant commenced this proceeding by filing a rent overcharge complaint
on March 4, 1981. Petitioner alleged that she was residing in the subject
apartment pursuant to a two year renewal lease commencing October 1, 1980.
Subsequent to executing that lease the owner sent her a note containing a
90 day cancellation clause giving the owner the right to cancel the lease
after a cooperative conversion plan filed with the Attorney General's
office is declared effective. Petitioner duly sent a rent payment at an
amount less than her legal regulated rent of $286.50 in reliance on a
section of the rent stabilization law prohibiting collection of a
guidelines rent increase where a lease contains the 90 day cancellation
clause and the offering plan has been accepted for filing by the Attorney
General's office. The owner returned the payment with a note cancelling
the 90 day clause. Petitioners complaint alleged that the 90 day clause
effected a permanent rollback in her rent and that she was overcharged
when the owner demanded the $286.50 per month according to the lease. The
owner responded to the complaint by stating, due to an amendment to the
offering plan, the 90 day cancellation clause issue was moot. The owner
further advised that the tenant had subsequently purchased the apartment
and was never exposed to the 90 day clause. Petitioner filed a response
to the answer alleging that it was illegal for the owner to attempt to
change a lease once it had been signed.
The Administrator dismissed the complaint. Petitioner was deemed correct
in that the attempt to insert the 90 day clause was illegal when done
subsequent to a renewal offer. Since the tenant was residing at the
apartment under a valid lease, she was required to pay the rent agreed to
in that lease i.e $286.50. Accordingly, the Administrator found that no
overcharge had occurred.
DOCKET NUMBER: BF 410298-RO
Petitioner appeals from this judgment by taking issue with the
Administrators characterization of the offering plan as "non-eviction".
According to petitioner the plan was an eviction plan and the 90 day
clause was being used as a scare tactic to induce her to buy or move.
Petitioner reasons that, since the owner acted illegally and used the 90
day cancellation clause as a bargaining chip in the conversion process,
the Administrator's order should be reversed.
After a careful review of the evidence in the record, the Commissioner
denies the petition.
The Administrator was correct in characterizing the insertion of the 90
day clause as illegal. The Court of Appeals, in Matter of East 56th Plaza
v. CAB 56NY2d 544, 434 NE2d 1337, 449NYS2d 959 (NY 1982) ruled that the
attempt to insert a 90 day cancellation clause into a renewal lease
already signed and executed by the tenant was illegal and void. Once the
tenant signed the renewal offer which contained a clause stating that
receipt of such accepted offer by the owner constituted a binding
agreement between the parties, the owner could not subsequently modify the
terms of the offer by inserting an additional clause. The illegality of
the disputed clause, however, did not render the entire lease invalid.
Rather the tenant was in occupancy pursuant to a binding renewal lease and
was required to pay the stated rent of $286.50. The Commissioner notes
that the owner has not conceded that the offering plan was an "eviction"
plan. The owner, o the contrary, maintains that this was a "non-
eviction" situation. Resolution of this issue is not necessary for the
purpose of adjudicating the tenant's petition and the parties can readily
determine this matter by examining the plan filed with the Attorney
General's office. The Administrator's order must be affirmed.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and hereby is, denied and that the order
of the Rent Administrator be, and hereby is, affirmed.