BJ410368RO
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. BJ410368RO
: DRO DOCKET NO. L3114271R
ORIN MANAGEMENT CORP. CDR20,728
PETITIONER :
------------------------------------X TENANT: Lisa Lindstrom
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 28, 1987, the above-named petitioner-owner refiled
a Petition for Administrative Review deemed timely against an order
issued on August 8, 1986, by the Rent Administrator, 92-31 Union
Hall Street, Jamaica, New York, concerning the housing
accommodations known as 200 West 16th Street, New York, Apartment
No.2B wherein based upon the owner's default, the Administrator
established the lawful stabilization rent and determined that the
owner had overcharged the tenant.
The Administrative Appeal is being determined pursuant to the
provisions of the Rent Stabilization Law and 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 commenced on March 28, 1984 when the
tenant filed a complaint of rent overcharge. Subsequently, on
August 20, 1984, the tenant filed an objection to the apartment
registration in which the tenant again complained that the rent
being charged was an overcharge and further complained that various
services were not listed on the registration.
On October 4, 1984, a copy of the overcharge complaint along
with answer forms and requirements for a rent history was served on
the owner. The owner requested an extension in which to respond.
On April 10, 1986, a Final Notice of Default was served on the
owner. The owner was informed that a failure to submit a rent
history would be considered a default which would require that the
legal rent be established pursuant to court approved default
procedures and further informed that treble damages would be
imposed on a willful overcharge occurring on or after Aprii 1,l984.
In response to the final notice, the owner asserted that the
BJ410368RO
parties had settled and that a stipulation of settlement, agreeing
to the rent as charged, would be forthcoming.
While this proceeding was pending, the processing of the
registration complaint continued and was determined under Docket
Number 26243 on July 11, 1986. In that order, the Administrator,
finding that the owner had defaulted, determined all issues but the
overcharge claim and stated that a separate order would be issued
under docket number L-3114271R, the instant order. The owner filed
an appeal against the order issued under docket number 26243. While
determination of the appeal was pending, the order herein appealed
which established the legal stabilization rent at $266.19 effective
June 15,1982 and which found a rent overcharge of $13,709.80
including treble damages and excess security was issued on August 8,
1986.
On December 2, 1986, under Docket No. ARL12207-L, the
Commissioner remanded DRO Docket No.26243 for further processing.
On July 8, 1989, the Rent Administrator issued a new determination
of the issues raised in the tenant's objection to the registration.
Based upon a stipulation of settlement which contained the
following terms: 1. Tenant agrees that the rent registered by the
Owner is the correct rent; 2. Owner and tenant agree that there
has been no reduction in services; 3. Tenant agrees that the Owner
provides the registered services in question, the Administrator
found that the parties had amicably settled the matters at issue
and terminated the proceeding.
In this appeal, the owner contends that the Administrator's
order should be reversed because: 1) the tenant voluntarily vacated
the subject apartment; 2) the DHCR was notified that the owner and
the tenant had resolved their differences and that the owner had
forwarded an executed copy of the stipulation of settlement wherein
the tenant stated that the rent registered by the owner was the
correct rent.
In answer to the petition, the tenant states that "This matter
is still open."
Subsequently, when the owner was asked if it still wanted
resolution of its appeal, it replied in the affirmative.
A copy of the tenant's answer along with an opportunity to
submit a complete rental history of the subject apartment was then
sent to the owner on December 29, l993.
In reply to the tenant's answer, the owner asserts that the
DHCR is precluded from further processing the instant appeal by the
prior determination under Docket No.AL410044RP "which found that the
owner has always charged the legal regulated rent;" that the
tenant's answer to the Par is superseded by the July 18,1989 order
(the above-cited order); since said order was never challenged, it
remains binding on the parties; furthermore, the stipulation
complies with Section 2520.13 of the Rent Stabilization Code in that
the tenant was represented by counsel and the DHCR approved the
settlement. Finally, the owner asserts that the DHCR has made an
unwarranted finding of willfulness; the agency admitted that it had
overlooked the owner's substantial comnpliance in providing
BJ410368RO
documentation; the owner sent a copy of the stipulation of
settlement but the agency neglected to consider said stipulation.
After careful consideration, the Commissioner is of the opinion
that this petition should be denied.
At the outset, in determining the effect of the tenant's
multiple complaints and the stipulation of settlement on the
overcharge finding here at issue, the Commissioner notes that the
Rent Administrator was correct in excluding consideration of the
legal rent, an issue pending in the instant pre-April 1, 1984
complaint, from its determination of the tenant's registration
complaint (Docket Number 26243) which thus was limited to findings
as to registered services. The Commissioner further notes that the
stipulation of settlement was self-limiting by its heading; only
two dockets, 26243 and 83840 were listed and furthermore, the tenant
requested withdrawal of only the registration objection.
Accordingly, the Administrator did not err in making a finding in
the instant docket which, although determined later, antedated the
registration complaint and would provide the basis of the legal
registered rent.
The owner is mistaken as to the Administrator's finding in
Docket AL410044RP in that the Administrator merely recited the terms
of the settlement as agreed by the parties and based upon the
withdrawal request, terminated the proceeding. Such termination
constituted neither a finding as to the legal rent nor approval of
the terms of the settlement within the framework of Code Section
2520.13 which provides in pertinent part that under certain
conditions, including representation by counsel and approval by a
court of competent jurisdiction or the DHCR, a tenant may withdraw
a complaint. In the absence of any of the specified conditions, a
tenant may repudiate the settlement. The evidence of record shows
that in response to the Administrator's request for certification of
the stipulation, the tenant affirmed the withdrawal request only
with respect to the dockets listed at the top of the document.
The record confirms that the termination of the registration
complaint does not have a preclusive effect on the establishment of
the legal stabilization rent or the finding of a rent overcharge.
The legal stabilization rent was not at issue in the owner's appeal
of Docket 26243 (the issue having been extracted by the
Administrator in deference to the pre-April 1, 1984 complaint).
Consequently, the order remanding the proceeding for further
processing did not include the rent issue. As a result, regardless
of the parties' agreement, which was apparently repudiated by the
tenant with respect to rent before the order's issuance, the order
issued upon remand could concern only those issues actually
appealed.
The Commissioner notes that the owner has never submitted any
documentation to verify the legality of the rent being charged, even
when offered the opportunity to do so in this appeal. The
Commissioner's finding of substantial compliance in the remand
order relates to required services. Accordingly, the Administrator
was justified in finding the owner in default, in establishing the
legal stabilized rent and in imposing treble damages as the owner
has not shown lack of willfulness.
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Since the record indicates that the tenant has vacated the
subject apartment and has moved to another apartment in the subject
building, a copy of this order is being sent to the tenant in
occupancy of
the subject apartment.
The owner is directed to reflect the findings and
determinations made in this order on all future registration
statements, including those for the current year if not already
filed, citing this order as the basis for the change. Registration
statements already on file, however, should not be amended to
reflect the findings and determinations made in this order. The
owner is further directed to adjust subsequent rents to an amount no
greater than that determined by this order plus any lawful
increases.
The Commissioner has determined in this Order and Opinion that
the owner collected overcharges of $13,709.80. This Order may, upon
expiration of the period for seeking review of this Order and
Opinion pursuant to Article Seventy-eight of the Civil Practice Law
and Rules, be filed and enforced in the same manner as a judgment or
not in excess of twenty percent per month thereof may be offset
against any rent thereafter due the owner. Where the tenant files
this Order as a judgment, the County Clerk may add to the
overcharge, interest at the rate payable on a judgment pursuant to
section 5004 of the Civil Practice Law and Rules from the issuance
date of the Rent Administrator's Order to the issuance date of the
Commissioner's Order.
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
JOSEPH A. D'AGOSTA
Deputy Commissioner
BJ410368RO
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