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STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NY 11433
----------------------------------x S.J.R. 5951
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
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KEY AND GEE ASSOCIATES, RENT ADMINISTRATOR'S
DOCKET NOS.:
TC 074355-G
PETITIONER BL 110056-RP
----------------------------------x TENANT: Evan Davey
ORDER AND OPINION DENYING A PETITION FOR ADMINISTRATIVE REVIEW
AND REVOKING AN ADMINISTRATIVE ORDER
On March 7, 1988, the above-named owner filed a Petition for
Administrative Review against an order issued on February 11,
1988, by a Rent Administrator concerning housing accommodations
known as Apartment 7-E, 138-70 Elder Avenue, Flushing, New York,
wherein the Administrator determined that the tenant had been
overcharged.
Subsequent thereto, the subject-tenant filed a petition in the
Supreme Court pursuant to Article 78 of the Civil Practice Law
and Rules in the nature of a mandamus proceeding.
On November 6, 1991, an order was issued by Justice Santucci from
the Supreme Court of New York State, Queens County, remitting the
proceeding to the Division for a determination of the owner's
administrative appeal within 90 days.
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant
to the issues raised by the administrative appeal.
This proceeding was originally commenced on August 22, 1983 by
the filing by the tenant of a complaint of rent overcharge. The
owner was served with the complaint and requested to submit a
complete lease history. The owner failed to comply with this
request.
On June 16, 1986, the Rent Administrator issued an order under
Docket No. TC 074355-G, wherein it was determined that the tenant
had been overcharged in the amount of $9,957.53 and that the
lawful stabilized rent on the date of issuance was $362.58, in
accordance with a two-year lease term commencing on July 1, 1984.
The order stated that the owner had failed to submit a complete
lease history. The rent history was determined in accordance
with default procedures established pursuant to Section 42-A of
the former Rent Stabilization Code.
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The owner filed a petition for administrative review of this
order on July 7, 1986, contending therein that the computation of
the refund was wrong since the Administrator did not account for
a three-month rent abatement which the tenant received as part of
a stipulation agreement with the owner, and that the order did
not accurately state the actual rents charged the tenants.
On March 11, 1987, the Commissioner issued an order and opinion
under Docket No. ARL 11408-Q granting the owner's petition in
such part as credited the abatement of three months rent for
July, August, and September, 1984. As based on the lawful
stabilized rent of $362.58 per month, a total of $1,087.74 was
deducted from the amount of overcharges in the petitioned order,
reducing the total overcharge to $7,194.48. The June 25, 1984
stipulation agreement was ruled void and without effect. The
administrative order was affirmed in all other respects.
Subsequently, on January 13, 1988, a Notice of Proceeding to
Reconsider Order Pursuant to Remand was sent to the parties
wherein it was announced that the proceeding was being reopened
in accordance with the Order of Remand issued on March 11, 1987.
The notice also stated that the administrative order was being
modified to reflect the actual rents collected by the owner and
to recompute the total overcharge owed to the tenant. A
statement informing the parties that they had 20 days within
which to submit an answer, and additional evidence if desired,
appeared on the bottom portion of the notice.
On February 4, 1988, the owner submitted an answer to the DHCR
which included a lease history dating to 1973.
On February 11, 1988, the Division issued an amended order under
Docket No. BL 110056-RP/TC 074355-G, wherein the total
overcharges were reduced from $9,957.53 to $7,194.48, in
accordance with the Commissioner's order and opinion dated March
11, 1987. This order included a rent calculations chart which
reflected the reduced overcharge amount, but was in all other
respects identical to the charts in the original order and the
Commissioner's order and opinion.
In its petition, the owner contends that the new order was
improper because the Rent Administrator ignored the complete rent
history that it had submitted in response to the Notice of Pro-
ceeding to Reconsider and, secondly, that the amount of rent
credited to the tenant's account for July, August, and September,
1984, was actually $1,425.00 instead of $1,087.00, in accordance
with the aforementioned stipulation agreement. Enclosed with the
petition was the alleged stipulation agreement and the lease
history for the subject-premises extending back to 1973.
The tenant responded that the owner should not be afforded
another opportunity to appeal those issues since they had already
been reviewed in the Commissioner's order and opinion dated March
11, 1987. Furthermore, since the lawful rent of $362.58 had been
affirmed by the Commissioner, the owner should only receive
credit for three months rent based on that amount, and not the
incorrect higher amount that was in the voided stipulation
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agreement.
After careful consideration, the Commissioner is of the opinion
that the owner's petition should be denied and that the order
under review - BL 110056-RP, issued on February 11, 1988 - should
be revoked.
The Commissioner notes that the order and opinion dated March 11,
1987 had granted the owner's petition in such part as deducted
the lawful rent for July, August and September, 1984 from the
total overcharges. The administrator's order had been affirmed,
however, in all other respects, including the determination of
the lawful rent as $362.58. The Commissioner's order and opinion
is clearly a final determination and does not order the Rent
Administrator to make any further determinations or direct a
remand of the proceeding.
Therefore, the owner's failure to timely commence a judicial
review proceeding pursuant to Article 78 of the Civil Practice
Law and Rules precludes any further appellate review of the
issues in the Commissioner's order.
The Commissioner further notes that, although the Commissioner's
order and opinion of March 11, 1987 had granted the owner's
petition in part by reducing the amount of overcharges, the order
was a final one in accordance with Section 2529.8 of the Rent
Stabilization Code in that none of the issues contained therein
were remanded for any further action by the rent administrator.
As such, the Commissioner herein rules that the amended order of
February 11, 1988 is void and must be revoked, and that an
appellate review of the issues contained therein is barred under
the doctrine of res judicata.
The determination made by the Commissioner in Docket No. ARL
11408-Q that the owner is required to refund $7,194.48 may be
filed and enforced as a judgment or not in excess of twenty
percent thereof per month of the amount owed by the owner may be
offset against any rent thereafter due the owner.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that the owner's petition be, and the same hereby is,
denied, and that the Administrator's Order under Docket No. BL
110056-RP/TC 074355-G, as amended, issued on February 11, 1988,
be revoked. It is further ordered that the issues decided in
Administrator's order No. TC 743355-G, as amended and affirmed in
the Commissioner's Order and Opinion under Docket No. A L 11408-
Q, issued on March 11, 1987, remain as so resolved.
ISSUED:
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JOSEPH A. D'AGOSTA
Deputy Commissioner
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