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. BG 410188 RO
: DRO DOCKET NO. TC-76082-G
DAVID TSENG TENANT: ANGELA RODRIGUEZ
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On July 28, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on June
23, 1987, by the Rent Administrator, 10 Columbus Circle, New York,
New York, concerning the housing accommodations known as 460
Audubon Avenue, New York, New York, Apartment No. C2, wherein the
Rent Administrator determined that the owner had overcharged the
tenant.
The Commissioner notes that this proceeding was filed prior
to April 1, 1984. Sections 2526.1 (a) (4) and 2521.1 (d) of the
Rent Stabilization Code (effective May 1, 1987) governing rent
overcharge and fair market rent proceedings provide that
determination of these matters be based upon the law or code
provisions in effect on March 31, 1984. Therefore, unless
otherwise indicated, reference to Sections of the Rent
Stabilization Code (Code) contained herein are to the Code in
effect on April 30, 1987.
The Administrative Appeal is being determined pursuant to the
provisions of Sections 11 and 42A of the former Rent Stabilization
Code.
The issue herein is whether the Rent Administrator's order
was warranted.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issue raised by the administrative appeal.
This proceeding was originally commenced by the filing in
September 1983, of a rent overcharge complaint by the tenant in
which the tenant stated that she had moved to the subject
apartment on July 15, 1983 pursuant to a one year lease at a
rental of $350.00 per month.
The owner was served with a copy of the complaint and was
directed to submit a complete rental history for the subject
apartment from the base date including copies of all leases. In a
BG 410188 RO
response filed on December 12, 1983, the owner stated that it had
agreed to reduce the rent from $350.00 per month to $313.57 per
month. On September 5, 1986, the owner advised that the tenant
had withdrawn her overcharge complaint and agreed that the rent
would be $374.50 effective October 1, 1985.
On May 21, 1987, the tenant in response to a notice stated
that she does not agree to withdraw her overcharge complaint.
Previously on August 26, 1985, the tenant appeared in person at 10
Columbus Circle and advised that she had been coerced by the owner
into signing a withdrawal of her overcharge complaint in that the
owner would not sign her Section 8 application unless she withdrew
her overcharge complaint.
In Order Number CDR 30,694, the Rent Administrator stated
that the tenant had not withdrawn her overcharge complaint,
determined that due to the owner's failure to submit a complete
rental history, the owner had collected a rent overcharge of
$1077.98 from July 15, 1983 through June 30, 1984, determined the
lawful stabilization rent was $232.00 effective July 15, 1983, and
directed the owner to refund the overcharge to the tenant. The
rent charged the tenant was listed as $313.57 during this period
the rent amount the owner stated it had reduced the rent to in
its December 12, 1983 response.
In this petition, the owner contends in substance that its
failure to supply rent records was due to the settlement it made
with the tenant, that the settlement should have been enforced and
the proceeding discontinued and that it made a refund of $782.39
to the tenant. In support of its contentions, the owner submitted
a copy of the tenant's affidavit dated July 23, 1985 withdrawing
her overcharge complaint due to a settlement with the owner and a
copy of a cancelled check from the owner to the tenant dated June
24, 1986 in the amount of $782.39. The owner did not submit a
rental history along with its petition.
The Commissioner is of the opinion that this petition should
be denied.
Section 42A of the former Rent Stabilization Code requires
that an owner retain complete records for each stabilized
apartment in effect from June 30, 1974 and produce them to the
DHCR upon demand. If the apartment was decontrolled from the Rent
Control Law after June 30, 1974, the owner must provide
satisfactory documentary evidence of the apartment's date of
decontrol.
In the instant case, the owner has not provided a complete
rental history as mandated by Section 42A although given an
opportunity to do so. With regard to the July 23, 1985
settlement, Section 11 of the former Rent Stabilization Code
provides that an agreement by the tenant to waive the benefit of
any provision of the Rent Stabilization Law or Code shall be void.
Therefore, the tenant was not bound by this settlement. It is
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noted that the copy of the cancelled check submitted by the owner
was dated almost a year after the settlement affidavit and it is
not possible to determine if this check was for any of the
overcharge found by the Rent Administrator. Since the owner
failed to raise this issue before the Rent Administrator, the
Commissioner has not considered this claim on appeal.
Accordingly, the Rent Administrator's order establishing the
lawful stabilization rent utilizing the Section 42A default
procedure and finding a rent overcharge was warranted.
This order is issued without prejudice to the owner's right
to commence a court action to recover the $782.39 if that amount
represents a return of overcharges. However, given the owner's
failure to timely raise this issue, the overcharge award ordered
by the Rent Administrator will not be adjusted.
Because this determination concerns lawful rents only through
June 30, 1984, the owner is cautioned to adjust subsequent rents
to an amount no greater than that determined by the Rent
Administrator's order plus any lawful increases and to register
any adjusted rents with this order and opinion being given as the
explanation for the adjustment.
This order may upon the expiration of the period in which the
owner may institute a proceeding pursuant to Article 78 of the
Civil Practice Law and Rules, be filed and enforced as a judgment
or not in excess of twenty percent per month of the overcharge may
be offset against any rent thereafter due the owner.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and
the same hereby is, denied, and, that the order of the Rent
Administrator be, and the same hereby is, affirmed.
ISSUED
ELLIOT SANDER
Deputy Commissioner
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