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

          ------------------------------------X 
          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.   







          BJ410368RO


               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



                     












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