Docket No.: EA 410019 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.: EA 410019-RO
MILBROOK ASSOCIATES, LTD., DRO DOCKET NOS.:
U 3124237-R/ DC 410018-RP
PETITIONER TENANT: Adalberto Rodriguez
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ORDER AND OPINION REVOKING COMMISSIONER'S PRIOR ORDER
AND OPINION AFTER COURT REMIT
This proceeding was originally commenced by the filing of a rent
overcharge complaint by the tenant concerning housing
accommodations known as Apartment C2 at 9747 Shore Road, Brooklyn,
New York. The tenant took occupancy pursuant to a lease
commencing June 15, 1982 and expiring June 30, 1983 at a monthly
rent of $450.00. The tenant also asserted that the owner
collected an illegal broker's fee from the tenant.
By order issued August 11, 1986, the Administrator directed the
owner to refund the brokerage fee to the tenant.
The tenant filed a petition for administrative review of the
Administrator's order (Docket Number AI 510010-RT) asserting that
the Administrator had completely failed to address the tenant's
overcharge complaint.
By order and opinion issued January 30, 1989, the Commissioner
remanded the proceeding to the Administrator for processing of the
tenant's overcharge complaint pursuant to Section 42A of the Code
based on the owner's failure to submit a complete rental history
for the subject apartment.
By order issued December 1, 1989, the Administrator determined the
lawful stabilized rent pursuant to Section 42A of the Code based
on the owner's failure to submit a complete rental history,
established the lawful stabilized rent at $182.55 for the period
from June 15, 1982 to June 30, 1988, and directed the owner to
refund to the tenant overcharges of $58,733.88, including treble
damages on overcharges occurring after April 1, 1984.
The owner thereafter filed a petition for administrative review of
the Administrator's December 1, 1989 order in which the owner
asserted, among other things, that the Administrator had
incorrectly applied the default procedure and that treble damages
should not have been imposed.
Docket No.: EA 410019 RO
By order and opinion issued January 16, 1991, the Commissioner,
among other things, affirmed the application of the default
procedure but found, based on equitable considerations, that the
rent should be frozen and treble damages imposed only through
August 31, 1986, the end of the month following issuance of the
Administrator's initial order. The total amount of overcharge was
found to be $41,712.72.
Subsequent thereto, the owner filed a petition in Supreme Court
pursuant to Article 78 of the Civil Practice Law and Rules
challenging the Commissioner's order. The owner asserted therein
that there was a discrepancy between the tenant's original
complaint of specific rent overcharge wherein the tenant only
complained of having been charged a broker's fee and the alleged
photocopy of the complaint attached to the tenant's petition for
administrative review (Docket Number AI 510010-RT) which contains
an additional complaint of general rent overcharge.
On April 1, 1991, by order of Judge Ira Gammerman, the proceeding
was remitted to the DHCR for further processing.
The owner thereafter commenced another Article 78 proceeding in
the nature of mandamus for a judgment directing the Division to
render a determination of the owner's administrative appeal.
By notice to the tenant's attorney dated August 15, 1991, resent
to the tenant's attorney on September 20, 1991, the tenant was
afforded an opportunity to explain the discrepancy between his
initial complaint and the alleged photocopy of the complaint
attached to his petition for administrative review. The tenant
did not submit a response to this notice.
After careful consideration, the Commissioner is of the opinion
that the Commissioner's prior order and opinion should be revoked.
The record in this case indicates that the tenant's original
complaint contained only a complaint of specific rent overcharge
regarding a broker's fee, while the alleged photocopy of the
complaint submitted with the tenant's petition for administrative
review contains additional statements indicating a complaint of
general rent overcharge. The additional statements were that the
tenant had requested prior leases from the owner on June 15, 1982
and that the previous tenant James F. Haughney was paying $100.00
per month. The tenant has been afforded an opportunity to explain
the discrepancy in the complaint forms, but has failed to do so.
The Commissioner therefore finds that the tenant's complaint
should properly have been treated as a complaint of specific rent
overcharge regarding only the broker's fee, rather than as a
complaint of general rent overcharge.
The owner is directed to refund the broker's fee of $125.00 to the
tenant, if it has not already done so. The rent adjustment and
overcharge award of $41,712.72 are revoked.
Docket No.: EA 410019 RO
Any arrears owed by the tenant as a result of this order may be
paid by the tenant in equal monthly installments over the course
of the next 12 months. Should the tenant vacate after the
issuance of this order or have already vacated, all arrears will
be payable immediately.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that the Commissioner's prior order and opinion issued
January 16, 1991 be and the same hereby is revoked, the
Administrator's order issued December 1, 1989 be and the same
hereby is revoked, and the Administrator's order issued August 11,
1986, which directed refund of the $125.00 broker's fee, remains
in effect.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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