BL 410343-RO; CH 410044-RT
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. BL 410343-RO
(reopened)
CH 410044-RT
(reopened)
: DISTRICT RENT OFFICE
Antoinette Giaimo (owner), DOCKET NO. CE-410001-RP
and CDR 31755 As Amended
Lydia Andre (tenant), (L-3110119-R)
(CDR 31755)
PETITIONERS :
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ORDER AND OPINION GRANTING PETITIONS FOR ADMINISTRATIVE REVIEW
IN PART AFTER REOPENING UPON RECONSIDERATION
On November 5, 1992 an order was issued in Docket Nos. BL 410343-RO and
CH 410044-RT, finding an overcharge of $736.36 through October 31, 1987
at Apartment 3RW, 8 Spring Street, New York, New York. Although
overcharges were calculated only through October 31, 1987, since the
owner reduced the rent to $238.14 on November 1, 1987 as a result of a
Rent Administrator's order, the November 5, 1992 order listed the
collectible rent as $525.00 per month through February 28, 1990, as a
way of making clear that it was frozen until the owner properly
registered the apartment, at which time a prospective increase could be
taken, without charging more than $525.00 per month for any period prior
to such registration. The order noted that the tenant would owe arrears
of over $10,000, and directed the owner to allow her to pay off any such
arrears over a 24-month period.
The tenant subsequently requested reconsideration of the order on the
ground that she did not owe any arrears, since the owner had raised the
rent to $589.01 on August 1, 1988 and had taken subsequent increases,
and that there was in fact an overcharge of over $2,800 as of November
30, 1992, not including interest. She asked how she might collect the
overcharges due her, and whether or not she could begin paying a rent of
$525.00 as of December 1, 1992. While her request was dated October 10,
1992, it is clear that she is referring to the November 5, 1992 order,
and is concerned about the 60 day period (after the issuance of an order
on that date) in which to file an Article 78 petition. It is likely
BL 410343-RO; CH 410044-RT
that her letter should have been dated November 10 rather than October
10, 1992.
On December 8, 1992 the tenant's request for reconsideration was
granted, and that proceeding was reopened. Based thereon, the
Commissioner finds that the Commissioner's November 5, 1992 order should
be modified.
While the parties agree that the owner reduced the rent collected
beginning November 1, 1987, they also agree that she later increased the
rent based on the July 15, 1988 amended order. Because the November 5,
1992 order did not actually determine any arrears (or overcharge) for
the period on and after November 1, 1987, no harm is done by modifying
the rent calculation chart to remove the amounts of "Actual Rent
Charged" beginning November 1, 1987 and March 1, 1988, and by deleting
the penultimate paragraph, referring to arrears, in the body of the
order.
The order is not modified in finding an overcharge of $736.36 from March
1, 1986 to October 31, 1987, or in finding that the maximum lawfully
collectible stabilization rent remains at $525.00 per month until the
owner corrects the 1984 registration and registers the apartment for all
subsequent years. The owner is cautioned to adjust the rent for any
periods after October 31, 1987 to amounts no greater than determined in
this order plus any lawful increases, and to register any adjusted rents
(if different from the rents which the owner may have registered in the
registrations which she claimed on December 4, 1992 to have recently
filed), with this order being given as the reason for the adjustment.
To preserve her rights the tenant may wish to file another overcharge
complaint, and objection to the recently filed registrations, for
periods after October 30, 1987, referring to this order in order to
avoid confusion in processing of the complaint/objection. Regarding the
rent that the tenant is now required to pay, the Commissioner notes that
the owner now claims to have recently filed registrations as required to
be able to prospectively collect all lawful increases above the lawful
March 1, 1984 rent of $525.00.
On December 9, 1992 the owner, by letter from her representative Edward
Giaimo dated December 4, 1992, also requested reconsideration. By
letter dated December 14, 1992 the owner has acknowledged receiving the
December 8, 1992 order granting the tenant's request for reconsideration
and reopening this proceeding. The owner argues that the entire matter
should be reopened on all issues, and not just on the issues raised by
the tenant.
The owner contends in substance that the former Rent Stabilization Code
should have been, but was not, applied to this proceeding, which was
initiated by a complaint filed prior to April 1, 1984; that an
unconstitutional ex post facto application was being made of a rent
freeze penalty that did not exist at the time of the original complaint;
that the tenant's complaint freezes and limits the record, since the
complaint was never amended or supplemented; that there was no
BL 410343-RO; CH 410044-RT
registration requirement at the time the complaint was made, so any
alleged failure to register the subject apartment cannot form a basis
for any penalty; that the owner registered the subject apartment on June
27, 1984 as exempt due to substantial rehabilitation; that the
registration of exempt apartments is for the record only and, until
1989, was not even required of exempt apartments that had already been
once registered as such; that there has been confusion because a post-
April 1, 1984 overcharge complaint (Docket No. 036178) was consolidated
with the pre-April 1, 1984 complaint; that the owner's December 11, 1987
Petition for Administrative Review ("PAR") and the tenant's August 18,
1988 PAR against the July 15, 1988 amended order stayed all aspects of
the orders other than their determinations of the lawful rents; that the
owner's April 1, 1984 registration of the apartment as exempt was still
in effect since any directive in the July 15, 1988 order to amend the
registration to conform was stayed until the issuance of a final order,
which occurred on November 5, 1992; that the November 5, 1992 order
implies that the owner did not register the apartment in 1984, even
though the owner submitted a date-stamped copy and even though the
tenant acknowledged receiving it; and that the tenant's October 10, 1992
request for reconsideration indicates that she was improperly shown a
copy of the proposed order before it was issued on November 5, 1992.
The Commissioner is of the opinion that the owner's and tenant's
Petitions for Administrative Review should be granted in part, that the
Commissioner's November 5, 1992 order should be modified, and that the
owner's request for reconsideration should be denied.
The courts of this State have repeatedly held that there must be
finality in administrative proceedings. The Commissioner's authority to
reopen an Administrative Appeal is strictly limited to where the "order
was the result of illegality, irregularity in a vital matter, or fraud."
Review of the matter does not disclose any legal basis for reopening
the owner's Administrative Appeal.
Section 15 of the Omnibus Housing Act (Chapter 403, Laws of 1983) added
Section YY51-6.0.6., concerning registration requirements and freezing
of the collectible rent for a failure to file an initial or annual
registration, to the Administrative Code of the City of New York,
effective April 1, 1984. This registration requirement applied to the
subject apartment as of April 1, 1984, without any need for the owner to
be put on notice of it by a complaint or to be directed by a DHCR order
to register the apartment. While the tenant's complaint in Docket No.
L-3110119-R was filed prior to April 1, 1984, the rent is being frozen,
with a resultant overcharge, only for periods after the registration
requirements were in effect and during which the owner increased the
rent despite not having met the requirement of annual registration, such
periods being during the course of an ongoing overcharge proceeding.
The tenant's filing of an overcharge complaint prior to April 1, 1984
does not somehow relieve the owner of her obligation to comply with the
Omnibus Housing Act during the course of the proceeding; it is proper to
apply that Act to actions, and non-registration, occurring after April
BL 410343-RO; CH 410044-RT
1, 1984 during the course of the proceeding. (In addition, the tenant
filed a post-April 1, 1984 overcharge complaint in September, 1984 in
Docket No. 36178. A December 2, 1986 order in that case stated that the
overcharge portion of her registration objection would be consolidated
with Docket No. L-3110119-R). Because the requirement of annual
registration was not dependent on DHCR orders, there was no automatic
stay of that requirement upon the filing of PAR's. While the owner may
be correct that exempt apartments did not have to be registered annually
after the initial registration (at least for several years after 1984),
that applies only to apartments that actually are exempt from rent
regulation. The subject apartment did not meet the requirements for
exemption in 1984, and every order to date has continued to find that it
was not and is not exempt. An owner who is of the opinion that an
apartment is exempt is best advised to register it annually, even if
only as exempt, until receiving a formal determination confirming that
opinion.
Regarding the owner's other contentions: The November 5, 1992 order did
not deny the fact of the initial registration in 1984, but froze the
collectible rents because the owner had failed to file subsequent annual
registrations. As mentioned earlier, the tenant's October 10, 1992
letter was misdated, since it is referring to an order which she did not
see, in proposed or final form, until after it was issued on November 5,
1992.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that these petitions be, and the same hereby are, granted in
part; that the Administrator's July 15, 1988 order and the
Commissioner's November 5, 1992 order be, and the same hereby are,
modified in accordance with this order and opinion; and that the owner's
request for reconsideration be, and the same hereby is, denied.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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