ADM. REVIEW DOCKET NO.: CB 410133 RO
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.:
CB 410133 RO
:
DRO DOCKET NO.:
011941 Examining Unit
ROBERT GERSHON AND
461 FT. WASHINGTON, INC.
Tenant - Oren Knighten
PETITIONER :
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ORDER AND OPINION REMANDING PROCEEDING FOR FURTHER PROCESSING
On February 17, 1988, the above-named owner filed a Petition
for Administrative Review against an order issued on January 13,
1988 by the Rent Administrator, 10 Columbus Circle, New York, New
York concerning the housing accommodation known as 461 Ft.
Washington Avenue, Apartment No. 46, New York, New York wherein
the Administrator in granting the tenant's fair market rent
appeal, established the Fair Market Rent at $405.83 and directed
the owner to refund $14,796.36 inclusive of excess security.
The Commissioner has examined all of the evidence of record
and has carefully considered that portion of the record relevant
to the issues raised in the administrative appeal.
This proceeding was commenced on July 17, 1984 when the
tenant filed a challenge to the initial registered rent alleging
that the rent paid by the previous tenant had been much lower
than the rent being collected. The tenant stated that he had
first rented the subject apartment on May 1, 1982 at a rent of
$600.00.
Notice of the tenant's objection as well as a demand for a
full rental history was served on the owner on January 28, 1985.
On February 12, 1986, the owner was advised that its failure
to submit a rental history of the subject apartment from March
31, 1980 might result in the establishment of the legal rent by
use of the last maximum base rent. The owner was directed to
submit a list of similarly-sized apartments.
In response, the owner submitted copies of prior
correspondence with the tenant which indicated that the tenant
had previously filed and withdrawn a similar complaint with the
ADM. REVIEW DOCKET NO.: CB 410133 RO
New York Conciliation and Appeals Board.
In response to an inquiry by the DHCR, the tenant stated
that he did not wish to withdraw the instant complaint.
Subsequently, the owner submitted information that the
subject apartment had been vacancy decontrolled in March 1982 and
the current tenant had commenced occupancy on May 1, 1982.
In the order here under appeal, the Administrator
established the fair market rent at $405.83 effective May 1, 1982
and directed the owner to refund excess rent of $14,796.36
inclusive of excess security.
In the appeal, the owner's request to reverse the order is
based on: 1) the contention that the instant complaint is a
duplication of two prior dockets, one filed with the Conciliation
and Appeals Board and the other with the DHCR, both of which had
been withdrawn by the tenant with the consequence that the order
terminating the complaint before the DHCR eliminated any rent
overcharge issue through March 25, 1987 and established the
lawful rent as of that date; 2) the owner further contends that
by filing multiple complaints, the tenant had abused the
complaint procedure of the DHCR.
The tenant states that he withdrew the previous complaints
in the belief that the owner had agreed to take corrective
measures to adjust the rent and to ameliorate deficient
conditions. The owner's failure to keep promises each time had
caused him to refile. The tenant contends that he has filed
complaints in an effort to have a determination made of the
proper rent.
The Commissioner is of the opinion that this matter should
be remanded for further processing.
The Commissioner finds that the owner's contentions are not
persuasive. Pursuant to Code Section 2520.13, an agreement to
waive the benefit of any provision of the Rent Stabilization Law
or Code is void; provided, however, that based upon a negotiated
settlement between the parties and with the approval
of the DHCR, or a court of competent jurisdiction where a tenant
is represented by counsel, a tenant may withdraw, with prejudice,
any complaint pending before the DHCR.
Review of the evidence reveals that in neither of the
previous proceedings did the withdrawal fulfill the conditions
imposed by Code Section 2520.13. Accordingly, any waiver of
benefit implied by the owner's submission of the tenant's
withdrawal of the prior proceedings is void. Furthermore, an
overcharge complaint and a Fair Market Rent Appeal (FMRA) are
separate and distinct. The termination of the overcharge
complaint does not preclude making a determination in the FMRA.
Moreover, the terminated proceeding was not fully considered
but its termination was based on the complaint's withdrawal which
was itself based upon a settlement agreement that the owner does
ADM. REVIEW DOCKET NO.: CB 410133 RO
not deny having breached. The Commissioner finds that there was
no abuse of the complaint procedure by the tenant who was seeking
the establishment of the legal rent in accord with applicable
laws and regulations.
Nevertheless, the Commissioner finds that this proceeding
should be remanded for further processing. Effective May 1,
1987, the determination of fair market rent appeals was governed
by Section 2522.3(e), (f). The owner should have been notified
and given the opportunity to submit comparables pursuant to this
section.
THEREFORE, in accordance with the Rent Stabilization Law
and Code, it is
ORDERED, that this petition be, and the same hereby is,
granted to the extent of remanding the proceeding for further
processing in accordance with this order and opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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