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
______________________________________x
IN THE MATTER OF THE ADMINISTRATIVE
APPEAL OF ADMINISTRATIVE REVIEW
DOCKET NO. BD 510121 RO
Placid Equities Corp., DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO. U 3123049 R
TENANT: Elba Castro
PETITIONERS
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 1, 1987, the above-named owner filed a petition for
administrative review of an order issued on March 13, 1987 by a
District Rent Administrator concerning the housing accommodation
known as Apartment 6I, 286 Fort Washington Avenue, New York, New
York wherein the Administrator determined that an overcharge had
occurred.
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 petition for review.
This proceeding was commenced on February 22, 1984 upon the
filing of a general complaint of rent overcharge by the tenant.
On July 31, 1986, the owner submitted a letter signed by the
tenant and notarized which stated that the rent she was paying
was "legal and fair" and she wished to withdraw her overcharge
complaint.
On September 26, 1986, the Administrator issued an order
terminating the proceeding based upon the withdrawal and apparent
settlement between the parties.
On October 27, 1986, the Administrator received a letter from the
tenant requesting that the order of September 26, 1986 be revoked
and contending that the withdrawal letter was a forgery. In
Docket No. BD510121RO - 2 -
addition, the tenant contended that, if the case is reopened, no
subsequent submissions by the owner should be accepted by the
Administrator and the owner had already defaulted by failing to
submit a lease history prior to the issuance of the
Administrator's order of September 26, 1986.
On November 12, 1986, the Administrator sent notice to the
parties of a proceeding to modify or revoke the order of
September 26, 1986 and afforded the parties seven days to
respond.
On November 20, 1986, the Administrator issued an order revoking
the order of September 26, 1986.
On December 11, 1986, the Division of Housing and Community
Renewal (DHCR) was notified for the first time by the tenant that
a change of ownership had occurred. The new owner, the
petitioner herein, was then served in this proceeding.
In its answer, the owner alleged that the letter of withdrawal by
the tenant was not a forgery and the proceeding should not have
been reopened. In addition, it is assert d by the petitioner-
owner that it was never afforded an adequate opportunity to
respond to the proposed revocation. Finally, the owner responded
to the merits of the proceeding and alleged that no overcharge
occurred. The owner alleged that the first stabilized tenant
took occupancy on April 1, 1978 under a two-year lease. It is
alleged that all subsequent rental amounts were within
permissible guidelines. The owner submitted a rent ledger for
July 1979 to document the rent paid by the alleged first
stabilized tenant and lease renewal offer sheets to document the
rental history of the current tenant. The owner also submitted a
copy of a Landlord's Report of Statutory Decontrol (R-42) filed
September 28, 1983 indicating that the subject apartment was
decontrolled "prior to December 1, 1982."
The tenant replied to the owner's answer. The tenant asserts,
among other things, that the Administrator should consider treble
damages. Further, she repeats her contentions that the
withdrawal letter was a forgery and that, on reprocessing, the
Administrator should not accept the owner's submissions.
In the order here under review, the Administrator determined that
the issue of the tenant's withdrawal letter was moot because the
order of termination issued on September 26, 1986 was issued
without prejudice to the tenant's right to reinstate the
proceeding. Further, the Administrator found the owner had
failed to produce a complete rental history. Employing the
court-authorized default formula, the Administrator established
the lawful stabilization rent at $326.50 for the lease period of
November 1, 1986 through October 31, 1988. The total overcharges
Docket No. BD510121RO - 3 -
were determined to be $4,075.88 through February 28, 1987,
including interest on post-April 1, 1984 overcharges and excess
security.
In its petition for administrative review, the owner requests
reversal of the Administrator's order. The owner alleges that
the alleged withdrawal letter is not a moot issue because the
letter also stated that the rents were "both legal and fair" and
that the Administrator's order of September 26, 1986 was issued
without prejudice to the tenant's right to file overcharge
complaints involving future overcharges only. Further, the owner
alleges that the Administrator's order of revocation issued
November 20, 1986 was made without adequate notice to the
petitioner-owner who did not have an adequate opportunity to
respond. It is alleged that the petitioner-owner and not the
prior owner submitted the withdrawal letter of July 1986 along
with notice to the agency that ownership had changed. Finally,
the owner alleges that, even if the merits of the case are to be
addressed, no overcharge occurred. It alleges that it had
established the base date of April 1, 1978 and submitted a
complete rental history from that date.
In her answer to the petition for review, the tenant alleges that
she was never served a copy of the petition by the owner.
Further, she repeats the arguments made below.
After careful consideration, the Commissioner is of the opinion
that this petition should be denied.
First, the tenant's allegation that the alleged failure of the
owner to serve a copy of the petition for review upon the tenant
should result in the dismissal of the petition is without merit.
The evidence in the record clearly demonstrates that the tenant
actually received the petition for review as indicated by her
thorough and point-by-point answer. Clearly, all of the tenant's
due process rights were protected.
Second, the Administrator correctly reopened the proceeding. As
stated by the Administrator, the decision to do so was not
dependent on the issue of whether the withdrawal letter was a
forgery. A tenant's withdrawal of a complaint is revocable until
the time for filing a petition for review has expired. DHCR
received notice from the tenant on October 27, 1986, which was
within the time allowed the tenant to revoke a withdrawal.
Therefore, the revocation of the withdrawal was timely and the
Administrator correctly reopened the petition.
Docket No.BD510121RO - 4 -
Third, the Commissioner is of the opinion that all of the owner's
due process rights were protected. The owner claims that it
acquired the subject apartment in January 1986 and that it, not
the prior owner, submitted the tenant's withdrawal letter and
notified the agency of the change of ownership in August of 1986.
Accordingly, the owner alleges that it and not the prior owner
should have been notified of the proposed revocation of the order
of September 26, 1986. The evidence in the record does not
support this claim. There is nothing in the record to show a
change of ownership before November 20, 1986, the date that the
Administrator's order of September 26, 1986 was revoked. It is
noted that the DHCR-registered owner on April 1, 1986 was not the
petitioner but the prior owner. Further, the tenant submitted a
letter entitled "Notice to All Tenants" which advised the tenant
of the change of ownership, dated November 26, 1986.
Accordingly, no due process violations occurred and the proper
parties were served at each point of the proceeding. Moreover,
the owner has failed to establish upon administrative review
that reopening was not warranted.
Finally, the Administrator correctly considered all the
submissions in the record including those of the petitioner-owner
submitted after the order of September 26, 1986 was revoked on
November 20, 1986.
Therefore, the Commissioner finds that all parties' due process
rights were fully protected. Accordingly, the merits of the case
will be considered.
The Commissioner is of the opinion that the Administrator
correctly determined that the owner was in default in this case
by failing to supply a complete rental history.
This Commissioner finds that the owner's allegation that it had
adequately established the base date of April 1, 1978 to be
without merit. The R-42 form submitted by the owner in this case
merely stated that the subject apartment was decontrolled "prior
to December 1, 1982." DHCR records indicate that the Maximum
Base Rent Schedule submitted by a prior owner effective January
1, 1972 indicated that fifty-one of the sixty-one apartments in
the subje t building were rent-controlled. Among the rent-
controlled apartments listed was Apartment 6I. In 1974 only
twenty-eight of the sixty-one units were listed as rent-
controlled. Apartment 6I was not among these. In 1976 and 1977
twenty apartments were listed and for January 1. 1978 only twelve
apartments were listed. None of these schedules included
Apartment 6I. Clearly, the subject apartment was decontrolled
well before the owner-alleged decontrol date of April 1, 1978.
Accordingly, the owner failed in its obligation to adequately
establish the date of decontrol and clearly failed to supply a
complete rental history.
Docket BD510121RO - 5 -
Therefore, the Administrator correctly found that the owner was
in default and properly used the court authorized default formula
in determining the overcharges and establishing the lawful
stabilization rent.
The Commissioner notes that, in the absence of a petition for
administrative review filed by the tenant, the issue of treble
damages will not be considered.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, 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; and it is
FURTHER ORDERED, that the owner Placid Equities Corp. shall
immediately refund to the tenant all amounts not yet refunded
representing overcharges, interest and excess security; and it is
FURTHER ORDERED, that if the owner Placid Equities Corp. has not
yet refunded the stated amounts upon the expiration of the period
for seeking judicial review of this order pursuant to Article 78
of the Civil Practice Law and Rules the tenant may recover such
amounts by deducting them from the rent due to the owner at a
rate not in excess of twenty percent of the amount to be refunded
for each month's rent. If, after such period, the owner has
refunded no such amounts and the tenant has not made any such
deductions from her rent as an offset, then the tenant may file
and enforce a certified copy of this order as a judgment for the
amount of $4,075.88 against Placid Equities Corp.
ISSUED:
Joseph A. D'Agosta
Deputy Commissioner
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