DOC. NO.: BL 410217-RT
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. BL 410217-RT
MARY EILEEN EDSELL : D.R.O. DOCKET NO.:
PETITIONER : ZL 001406-R
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND REMANDING PROCEEDING FOR FURTHER PROCESSING
On December 14, 1987, the above-named petitioner filed a Petition for
Administrative Review against an order issued on November 13, 1987 by
the Rent Administrator, 92-31 Union Hall Street, Jamaica, New York
concerning the housing accommodation known as 240 West 73 Street,
apartment 212, New York, New York wherein the Administrator denied the
tenant's rent overcharge application.
The Commissioner has reviewed all the evidence in the record and has
carefully considered that portion of the record relevant to the issues
raised in the administrative appeal.
The tenant commenced this proceeding on April 4, 1985 by filing a
complaint of rent overcharge. The tenant stated that she had taken
occupancy of the subject apartment pursuant to a one year vacancy
lease, commencing April 13, 1984, and terminating April 30, 1985 at a
monthly rent of $500.00.
On May 24, 1985, a copy of the complaint was sent to the owner.
In response, the owner requested that the tenant's complaint
(characterized by the owner as an objection to the registration) be
dismissed because the tenant had failed to file the complaint within
90 days of having received the apartment registration form (RR-1).
In reply, the tenant stated that she had not challenged the
apartment registration at the time of its receipt because she was
unaware that the rent she was paying was an overcharge and that when
she learned of the prior tenant's rent, she filed a complaint.
In reply, the owner repeated its answer to the complaint.
DOC. NO.: BL 410217-RT
In further reply, the tenant asserted that since the owner had
engaged in deceit, e.g. an obsolete rider, which had permitted
market rent upon voluntary vacancy (which allegedly was superseded
in 1983 pursuant to Chapter 448 of the Laws of 1983) was attached to
her initial lease, she had had no basis upon which to challenge the
apartment registration within 90 days.
On October 7, 1985, the owner replied in pertinent part that since
the prior tenant had vacated by reason of death, allegedly not a
voluntary vacancy, the change in the law is inapplicable and the
rental may be charged at market value.
On September 17, 1987, the Division notified the owner that the
subject apartment was not properly registered.
The owner sent a copy of the 1984 apartment registration and a
statement signed by the tenant acknowledging its receipt.
In the order issued on November 13, 1987, the Administrator
determined that there was no overcharge and denied the tenant's
In the petition, the tenant contends that the owner wilfully
falsified the lease thereby divesting her of any basis to challenge
the rent. The tenant contends that the owner attached the lease
rider which read in pertinent part "there is no restriction on the
amount of rent that may be charge for a vacant unit", with the
intent of charging an illegal increase in rent. Pursuant to the
Omnibus Housing Act of 1983, it was the owner's responsibility to
make known and to make available the governing law for hotel
stabilized apartments. The tenant further contends that the
instructions for the RR-1 were inadequate to provide the means for
insuring a fair rent to tenants in her particular circumstance, i.e.
tenants of units which were vacant on April 1, 1984. Moreover, the
tenant argues that the RR-1 instructions are inadequate in
situations where a tenant has been deceived by intentionally
misleading statements in the lease.
The owner states that the appeal is merely an excuse to level
inappropriate charges of fraud. Since the tenant admits to
receiving the RR-1 form, her failure to file the complaint within 90
days constitutes an absolute bar to any rent overcharge complaint.
The Commissioner is of the opinion that this petition should be
A review of the record discloses that the owner timely served the
tenant with an apartment registration form. However, contrary to
the requirements of Code section 2528.1, it failed to timely
DOC. NO.: BL 410217-RT
register the subject apartment. The 1984 registration was not filed
with the Division until 1987, long after the complaint was filed.
Furthermore, the registration form at issue is defective in that it
does not include, as required by Code section 2528.2(4), the rent
charged on April 1, 1984. Furthermore, the rider's statement that
there was no restriction on the vacancy rent was a material,
written misrepresentation that could affect the tenant's decision to
file a challenge. It is unnecessary to delve, at this juncture,
into the owner's intent or the tenant's charges of fraud. Given the
totality of the circumstances, however, the lease rider provided and
the owner's failure to adhere meaningfully to the provisions of the
Code, specifically, section 2528, the tenant was deprived of the
ability to file a knowledgeable complaint within 90 days. Moreover,
since the subject apartment was not registered with the DHCR until
1987, the tenant was not limited to the 90 days after receiving the
registration form to file the complaint.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that this petition be, and the same hereby is, granted to
the extent of remanding the proceeding and the order of the Rent
Administrator be, and the same hereby is, revoked in accordance with
this order and opinion.