ADM. REVIEW DOCKET NO.: CC520361RT
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.: CC520361RT
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NOS.: ZAF520413R
MRS. WENDELL L. PAYNE, ZBB520383R
PETITIONER
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ORDER AND OPINION DENYING TENANT'S PETITION
FOR ADMINISTRATIVE REVIEW
On March 24, 1988, the above named petitioner-Mrs. Wendell L.
Payne filed a Petition for Administrative Review against an order
issued on March 11, 1988, by the Rent Administrator, Gertz Plaza,
Jamaica, NY concerning housing accommodations known as Apartment 24
at 4648 Broadway, New York, NY, wherein the Rent Administrator
terminated the proceeding as it was previously resolved under
docket # ZAF520413R with an order issued on June 27, 1987.
The issue in this appeal is whether the tenant's PAR is barred
by the doctrine of res judicata. The underlying 1987 order set the
initial legal rent stabilized rent as $275. the subject former
rent controlled apartment had been placed under jurisdiction of
rent stabilization effective May 1, 1982 pursuant to Article XV of
the Private Housing Finance Law.
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 in the petition for administrative
review.
The initial proceeding under order # AF520413R was commenced
on June 23, 1986, by the filing of a tenant's overcharge complaint
in which the tenant alleged that the owner is collecting $275.00
per month in rent, and that the complainant's apartment is subject
to rent control. The tenant further alleged that the
rehabilitation work in the apartment was done in a shoddy fashion.
The complainant commenced occupancy in the subject apartment
on January 4, 1934 at a monthly rent of $60.
ADM. REVIEW DOCKET NO.: CC520361RT
The tenant further claimed that the rent was $107.21 as of
March 31, 1980. The rent was raised to $260 on May 1,1982
following building rehabilitation and to $275 as of May 1, 1983.
On August 4, 1986 the subject owner filed its response which
pointed out that three adjacent buildings (including the subject
4648 Broadway were rehabilitated in 1981-1982. The owner contends
that all apartments in the affected buildings went from rent
control to rent stabilization by operation of law. the owner
further contends that the tenant has refused to sign a valid rent
stabilized lease and that the renovations were approved by the City
of New York.
The agency's R-2 Card reflects that the subject apartment was
stabilized effective May 1, 1982 pursuant to order # ZAC5290 in
accordance with provisions of Article XV of the Private Housing
Finance Law.
On June 22, 1987 the Rent Administrator issued an order #
ZAF520413 finding that there was no rent overcharge and therefore
terminating the proceeding.
The Rent Administrator reached the above outcome by first
finding the subject apartment to be rent stabilized, and that the
$275 rent charged by the owner on June 18, 1986 was consistent with
the $275 initial legal registered rent registered on April 1, 1984.
Further the administrator found that the required 1984 apartment
registration form was properly served by the owner on the tenant of
record.
The tenant's request to reopen order #ZAF20413R was denied.
The tenant failed to file a timely PAR to order # ZAF520413R.
While # ZAF520413 was still pending the tenant on February 12, 1987
filed the second rent overcharge complaint asserting an identical
rent history. The second complaint was docketed # ZBB520383R.
The owner answered the tenant's complaint on March 1, 1987
pointing out it was a multiple complaint of rent overcharge. The
owner again noted that the building was rehabilitated in 1982 and
all tenants were made rent stabilized instead of rent control.
On March 11, 1988 the same rent administrator issued an order
under docket # ZBB520383R terminating the proceeding as the matter
was previously resolved under docket # ZAF520413R.
The tenant filed a Petition for Administrative Review on March
24, 1988 citing both the June 22, 1987 order #ZAF520413R and the
ADM. REVIEW DOCKET NO.: CC520361RT
March 11, 1988 order #ZBB520383R. The tenant in her PAR contends
she is a statutory tenant as she moved into the apartment on
January 4, 1934.
It should be noted that the tenant's PAR is untimely as she
was obligated to file a PAR within thirty-five days of issuance of
the first order issued June 22, 1987. The tenant's second
complaint was properly terminated as repetitious.
The doctrine of res judicata bars the tenant from filing a
second application for identical relief. The Rent Administrator
was accordingly correct in terminating the second petition.
Further, a review of tenant's petition on the merits would
also result in the petition being denied.
The rent agency's record reflects that the Department of
Housing Preservation and Development of the City of New York (HPD)
issued an order on April 28, 1982, under Docket No. 2ACS5290, which
stated that:
Article 15 of the Private Housing Finance Law
provides that the Agency may grant a rehabilitation loan,
in participation with a private lending institution, and
that the Agency shall after the completion of the
rehabilitation of a multiple dwelling, establish initial
rents for all rental units in the multiple dwelling
whether stabilized, controlled or not currently subject
to regulation. Pursuant to Section 804 of the Private
Housing Finance Law, after the establishment of rents,
the owner shall offer tenants in occupancy a new two year
lease at such rent. A tenant may sign such a lease or
request a one year lease if he or she wishes to remain in
occupancy; in either case, the owner may demand the new
rent established herein from the effective date of this
Order and Report. Subsequent rent increases and lease
renewals are subject to the laws, rules and regulations
of the rent stabilization system.
The above-mentioned order determined that the subject
apartment "was rehabilitated pursuant to Article 15 of the Private
Housing Finance Law," and established a new initial rent for the
subject apartment of $275.00 per month, effective May 1, 1982,
ADM. REVIEW DOCKET NO.: CC520361RT
pursuant to the applicable section of the Private Housing Finance
Law. The order further stated that, "by operation of law, units
heretofore subject to the rent control laws are no longer
controlled and are hereby stabilized on such effective date."
In the order under review herein, the Administrator noted that
pursuant to Article 15 of the Private Housing Finance Law the
subject apartment was decontrolled, and that the order issued by
HPD established the subject apartment's initial regulated rent at
$275.00 per month, effective on May 1, 1982. The Administrator's
order also determined that the owner served the apartment
registration form on the subject tenant; that, "The rent charged
and controlled by the owner at time of the tenant's complaint is
the same amount set forth as the Initial Legal Registered Rent";
that the subject tenant did not file a timely objection to the
initial rent, and therefore the April 1, 1984 registered rent of
$275.00 per month is the initial legal regulated rent for the
subject apartment.
The record reflects that the tenant did in fact file a timely
objection to the apartment registration.
However, pursuant to the HPD's order, the Commissioner finds
that the subject apartment as of May 1, 1982, became rent
stabilized, and that the subject apartment is presently under the
jurisdiction of the Rent Stabilization Law and Code.
As the order issued by HPD established the subject apartment's
initial legal regulated rent at $275.00 per month, and that the
tenant admits that $275.00 per month is the amount that the subject
owner was collecting at the time of the commencement of the
overcharge complaint, the Commissioner finds that the
Administrator's order should not be disturbed, and that the
aforementioned HPD order is binding on the parties to this
proceeding.
The Commissioner notes that this order is being issued without
prejudice to the tenant's right to file a complaint for a reduction
of rent due to a diminution of services, if it is warranted, under
the provisions of the Rent Stabilization Law and Code. The
Commissioner further notes that this order does not prejudice the
tenant's right to file a future overcharge complaint, if it is
warranted, under the provisions of the Rent Stabilization Law and
Code.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is,
denied, and that the Administrator's order be, and the same hereby
is, affirmed.
ADM. REVIEW DOCKET NO.: CC520361RT
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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