BK 110257 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.: BK 110257 RO
MICHAEL M. LEE & COMPANY, DRO DOCKET NO.:
TC-061847/31,589
TENANT: LEATHEA E. VANDORA
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On November 19, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
October 14, 1987, by the Rent Administrator, 10 Columbus Circle,
New York, New York, concerning the housing accommodations known
as 84-09 Talbot Street, Kew Gardens, New York, Apartment C-15,
wherein the Rent Administrator determined that the owner had
overcharged the tenant.
The Administrative appeal is being determined pursuant to the
provisions of Section 2526.1 of the Rent Stabilization Code.
The issue in this appeal 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 issues raised by the administrative appeal.
This proceeding was originally commenced by the filing of a rent
overcharge complaint by the tenant on April 14, 1982. The owner
was served with a copy of the tenant's complaint and was advised
to submit a complete rental history of the subject apartment from
the base rent date as well as leases and documentation to
substantiate the base rent date. In response, the owner
submitted a lease history commencing June 1, 1980. The owner
stated that the first rent stabilized tenant was the tenant named
on the June 1, 1980 lease, that there was no overcharge, and
that the complainant's rent had been calculated in accordance
with permitted guidelines increases and a new appliance charge.
On May 26, 1987, a Final Notice of Pending Default was sent to
the owner affording it an opportunity to submit all leases
covering the period from the base rent date to the complainant's
first lease and to submit substantiating documentation of the
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alleged base rent date.
The owner did not reply to the notice. On September 24, 1987, in
response to a request for additional information, the owner
submitted a copy of the Landlord's Report of Statutory Decontrol
(R-42 form) in which the date of decontrol is stated as May 1975.
In Order Number 31,589, the Rent Administrator using default
procedures, established the lawful stabilization rent as $267.17
effective July 15, 1983, determined that the tenant had been
overcharged and directed a refund of $9,058.14 including interest
on overcharges collected on and after April 1, 1984.
In the petition, the owner contends in substance that the order
should be reversed since the Administrator ignored the tenant's
agreement to withdraw the complaint. The owner further contends
that since it had provided all requested information, the
Administrator erred in applying default procedures to determine
the rent.
In answer to the owner's petition, the tenant states that the
owner has never complied with the settlement terms, that she
doesn't know whether the terms were fair ab initio and therefore,
she does not wish to withdraw the complaint.
The Commissioner is of the opinion that this petition should be
denied.
Pursuant to Code Section 2520.13, a tenant cannot by agreement
waive any benefit provided by the Rent Stabilization Law and
Code. However, based upon a negotiated settlement, and with the
approval of the Division of Housing and Community Renewal (DHCR)
or a court of competent jurisdiction where a tenant is
represented by counsel, a tenant may withdraw any complaint
pending before the DHCR. Review of the evidence reveals that the
tenant was not represented when she settled and that the
settlement was not approved by either the DHCR or a court of
competent jurisdiction. Accordingly, the Administrator did not
err in disregarding the purported settlement in his
determination.
With respect to the owner's allegation of having submitted all
requested information, an examination of the record discloses
that although May 1975 (as is stated in the R-42 form) appears to
be the date of decontrol, despite having been instructed to
submit rental records from the base rent date, the owner
submitted no rental records prior to June 1, 1980. The
Commissioner notes that the subject property is located is the
Second Judicial Department and thus the submission required is
governed by the decision in JRD v. Eimicke 148 A.D.2nd 610 which
limited the owner's obligation to produce rent records to April
1, 1980. The owner should have submitted rental records from
April 1, 1980 which it failed to do. Accordingly, the
Administrator did not err in applying court approved default
procedures in establishing the lawful stabilization rent.
The lawful stabilization rent effective April 1, 1984 is $267.17.
The amount to be refunded to the tenant for the period July 15,
1981 through June 30, 1984 is $9,058.14 inclusive of excess
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security and interest on the overcharge collected on and after
April 1, 1984.
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 proceedi g pursuant to Article Seventy-
Eight of the Civil Practice Law and Rules, be filed and enforced
by the tenant in the same manner as a judgment or not in excess
of twenty percent thereof per month may be offset against any
rent thereafter due the owner.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, and the Emergency Tenant Protection Act of 1974, 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:
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JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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