OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                               JAMAICA, NEW YORK 11433

          APPEAL OF                              DOCKET NO.:  EA 410337 RO

                  MATEL MANAGEMENT COMPANY,      DRO DOCKET NO.: TA 010165
                                                 TENANT:  MICHAEL OPPEDISANO


          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 
          was warranted.

          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, 
          it is

          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


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