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
APPEAL OF ADMINISTRATIVE REVIEW
DOCKET NO. DF 110409 RO
Lane Management Corp., DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO. DD 110084 RP
TENANT: Leo Kwiatkowski
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On June 22, 1989, the above-named owner filed a petition for
administrative review of an order issued on May 19, 1989 by a
District Rent Administrator concerning housing accommodations
known as 41-47 56th Street, Apt 2G, Woodside, New York wherein
the Administrator updated overcharges from a previously issued
order.
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 review.
This proceeding was commenced on June 20, 1980 under Docket No.
TC045173G upon the filing of complaint or rent overcharge by the
tenant with the former New York City Conciliation and Appeals
Board (CAB). The tenant stated that he had not been shown a
lease history of the subject apartment and suspected he was being
overcharged.
The owner filed an answer to the complaint with the CAB wherein
it was alleged that the current tenant was the first stabilized
tenant after the previous rent-controlled tenant had vacated the
premises, and that no overcharge occurred.
On April 1, 1984, responsibility for the administration of rent
stabilization in New York City was transferred to the New York
State Division of Housing and Community Renewal (DHCR).
Docket No. DF110409RO - 2 -
In the order issued by DHCR on October 23, 1986 the Administrator
found that the owner had failed to provide a full rental history
for the subject apartment although requested to do so. The
Administrator employed the court-authorized default method to
determine the lawful stabilization rent of $203.37 as of March 1,
1980 through February 28, 1981. The Administrator established
the overcharges to be $766.00 through February 28, 1981 including
excess security.
In accordance with the Administrator's order, the tenant
proceeded to offset twenty percent of the overcharges in his
monthly rent payment for five months.
Subsequently, the owner instituted a non-payment of rent
proceeding in the Civil Court of Queens County because the
tenant exercised this option of rent offset.
In the proceeding in Civil Court t e parties entered a court-
approved stipulated agreement in which the lawful stabilization
rent was established at $312.44 from March 1, 1988 and the owner
agreed to provide the tenant with a two-year renewal lease
beginning March 1, 1989 at a rental of $340.55. In addition, the
owner agreed to credit the tenant's account $600.45 constituting
overcharges from October 1, 1986 through February 28, 1988.
Finally, the court ordered the rent agency to "...issue a
determination with respect to the overcharge for the period of
3-1-81 to 10-31-86. So that tenant may have entry of judgment."
On May 1, 1989, the DHCR issued an order under Docket No.
DD110084RP reopening the case and afforded the parties twenty
days in which to respond.
On May 19, 1989, the Administrator issued the order here under
review in which the Administrator updated the overcharge
calculations through February 28, 1989. The Administrator
recomputed the overcharges in their entirety and determined that
the overcharges were $4,112.04 including interest on overcharges
occurring after April 1, 1984.
In the petition for administrative review, the owner requests
that the Administrator's order be reversed. The owner alleges
that no overcharge occurred and that the underlying DHCR order
issued on October 23, 1986 under Docket No. TC045173G was
incorrect. The owner alleges that it was never served with a
copy of that order and therefore deprived of its right to file a
petition for review of that order. In the alternative, the owner
alleges that it was deprived of due process because it was not
given the full twenty days to respond to the order of
reconsideration. The owner notes that the order reopening the
proceeding was dated May 1, 1989 and the order here under review
was issued on May 19, 1989. Finally, the owner alleges that, at
a minimum, the Administrator's order must be amended to comply
Docket No. DF110409RO - 3 -
with the order of the Civil Court of the County of Queens and
limit the overcharges to those overcharges accumulating between
March 1, 1981 and Sept. 30, 1986.
The tenant filed an answer to the owner's petition for review.
The tenant states that he did not receive a complete copy of the
owner's petition but responds vigorously to the portion of the
petition for review he did receive.
After careful consideration, the Commissioner is for the opinion
that this petition should be granted in part.
First, the Commissioner finds that the owner may not now attack
the underlying order of October 23, 1986. The owner did not file
a petition for review of Docket No. TC045173G either in a timely
or an untimely manner. Further, the owner sought a remedy in
Civil Court. As a result, the owner, represented by counsel,
entered a court-approved stipulated agreement. In that
agreement the owner accepted the DHCR figure for the lawful
stabilization rent. The owner also accepted the DHCR
determination of overcharges through February 28, 1981 and the
DHCR figures for determining the overcharges occurring after
October 1, 1986. By so stipulating, along with its failure to
file a petition for review, the owner is now barred from
collaterally attacking the underlying Administrator's order of
October 23, 1986.
Second, the owner alleges that its due process rights were denied
by virtue of the fact that the Administrator issued the order
under review within the twenty days permitted for the owner to
answer. While the owner's statements of fact are correct, the
result of this premature issuance is not a due process denial
warranting reversal of the Administrator's order. In order to
ensure the owner's due process rights, the Commissioner is fully
considering the entire petition for review filed by the owner.
All eighteen points raised by the owner in six pages, as well as
the six exhibits, are being accepted and weighed by the
Commissioner in the determination of this petition for review.
Accordingly, all of the owner's due process rights have been
ensured.
Third, the owner correctly alleges that the Administrator
exceeded the parameters of the Civil Court's order. The court's
order specifically limited the Administrator's recalculations of
the overcharges to those due the tenant for the period of March
1, 1981 through September 30, 1986. The Administrator erred in
recalculating the overcharges in their entirety. Accordingly,
the overcharges should have been $2,217.64 and not $4,112.04 as
established by the Administrator. This amount has been
determined by using the unchallenged figures in the
Administrator's order and simply limiting the time frame for
which the overcharges were computed to the specific court-ordered
Docket No. DF110409RO - 4 -
time period.
The Commissioner notes that a complete copy of the owner's
petition for review was served upon the tenant who was then
afforded a full opportunity to respond.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted
in part, and that the Administrator's order be, and the same
hereby is modified, in accordance with this order and opinion;
and it is
FURTHER ORDERED, that the owner shall immediately refund to the
tenant all amounts not yet refunded representing overcharges and
interest; and it is
FURTHER ORDERED, that if the owner has not refunded the stated
amounts upon the expiration of the period for seeking judicial
review of this order pursuant to Article 78 of the Civil
Practice Law and Rules the tenant may recover such amounts by
deducting them from the rent due the owner. If the owner has
refunded no such amounts and the tenant has not made any such
deductions from his rent as an offset, then the tenant may file
and enforce a certified copy of this order as a judgment for the
amount of $2,217.64 against the owner.
ISSUED:
Joseph A. D'Agosta
Deputy Commissioner
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