STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: EA 410337 RO
MATEL MANAGEMENT COMPANY, DRO DOCKET NO.: TA 010165
TENANT: MICHAEL OPPEDISANO
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 31, 1990, the above-named petitioner-owner filed a
Petition for Administrative Review of an order issued on January 3,
1990, by the District Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning housing accommodations known as 51
East 2nd Street, Apartment 8, New York, New York wherein the
District Rent Administrator determined the fair market rent
pursuant to the special fair market rent guideline promulgated by
the New York City Rent Guidelines Board for use in calculating fair
market rent appeals.
The issue in this appeal is whether the Administrator's decision
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 by the filing of an
overcharge complaint form by the tenant with the New York City
Conciliation and Appeals Board (CAB), one of the predecessor
agencies to the Division of Housing and Community Renewal (DHCR).
The tenant took occupancy pursuant to a lease commencing October 1,
1979 and expiring September 30, 1981 at a monthly rent of $325.00.
By notice dated February 28, 1982, the parties were advised that
the proceeding was being re-docketed as a fair market rent appeal.
The owner was served with a copy of the application and was
afforded an opportunity to submit rent data for comparable
apartments. In answer to the application, the owner stated that
the rent charged the tenant was "fair".
In the order under appeal herein, the District Rent Administrator
adjusted the initial legal regulated rent by establishing a fair
EA 410337 RO
market rent of $256.36 effective October 1, 1979, the commencement
date of the initial rent stabilized lease, and directed the owner
to refund to the tenant of excess rent in the amount of $9,895.20.
In this petition, the owner contends that the District Rent
Administrator's Order is incorrect and should be modified because
the tenant withdrew his complaint in 1983. The owner also
submitted some comparability data for one apartment in the subject
building and for other apartments in adjacent building.
In answer to this petition, the tenant contends in substance that
the order should be upheld because he never cancelled his complaint
by sending in a withdrawal letter to the CAB or DHCR. The
withdrawal letter was only sent to DHCR by the owner.
The Commissioner is of the opinion that this petition should be
denied. The record reveals that on February 28, 1989 and again on
August 28, 1989, after the Division was sent correspondence from
the owner indicating the tenant wished to withdraw his complaint,
the Division served a copy of the owner's correspondence on the
tenant and by the notice of August 28, 1989 sought to verify if the
tenant wished to withdraw his complaint. On March 22, 1989 and
again on September 5, 1989 the tenant wrote to the Division that he
did not wish to withdraw his complaint. Subsequently the tenant's
complaint was processed and a determination issued on January 3,
1990. Section 2520.13 of the Rent Stabilization Code provides:
An agreement by the tenant to waive the benefit of any
provision of the RSL or this 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.
In the instant case the tenant repudiated the alleged withdrawal
and neither DHCR nor any Court approved of the alleged settlement.
Accordingly, it was proper for the Administrator to process the
tenant's fair market rent appeal.
The record also reveal that the owner was served by the
Administrator on February 9, 1989 with a request to submit
comparables. The owner did not submit any comparability data
before the Administrator and therefore can not submit this data for
the first time in this proceeding. It is noted that the one
apartment in the subject building cited by the owner as a
comparable apartment is not similar in size to the subject
apartment and that the comparability data submitted by the owner
does not meet the requirements outlines in the Division's notice.
The owner is directed to roll back the rent to the lawful
stabilized rents consistent with this decision and to refund or
fully credit against future rents over a period not exceeding six
months from the date of receipt of this order, the excess rent
collected by the owner.
In the event the owner does not take appropriate action to comply
within sixty (60) days from the date of this order, the tenant may
credit the excess rent collected by the owner against the next
month(s) rent until fully offset.
Because this determination concerns lawful rents only through
December 31, 1989, the owner is cautioned to adjust subsequent
rents to an amount no greater than that determined by this order
plus any lawful increases and to register any adjusted rents with
this order and opinion being given as the explanation for the
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that this petition be, and the same hereby is, denied and
the District Rent Administrator's order be and the same hereby is
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner