EB 410267 RT
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.: EB 410267 RT
DRO DOCKET NO.: ZDG 410249 R
OWNER-MARKS PLACE REALTY CORP.
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 26, 1990, the above-named tenant filed a Petition
for Administrative Review against an order issued on February 7,
1990 by the Rent Administrator, 92-31 Union Hall Street, Jamaica,
New York concerning the housing accommodation known as 17 St.
Marks Place, New York, New York, Apartment 6, wherein the Rent
Administrator denied the tenant's overcharge complaint.
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 commenced on July 20, 1989 when the tenant
filed a complaint of rent overcharge. The tenant stated that he
had moved into the subject apartment on September 18, 1980 at a
initial lease rent of $300.00 per month but actually had paid a
surcharge of 10% for a room-mate. This surcharge continued on an
informal basis until it became a permanent part of the rent when
the owner registered the apartment pursuant to the Rent
Stabilization Law. The tenant asserted that the owner had
deliberately misled him with respect to the room-mate fee with
the result that, not realizing he was being charged an illegal
rent, he had not challenged the registered rent.
A copy of the complaint was served on the owner.
On September 18, 1989, the owner responded that the tenant's
overcharge complaint was barred by his having failed to timely
object to the legal registered rent established by the Initial
In the order here under review, the Administrator, finding that
the owner had properly registered the initial rent and finding
that all subsequent rents were lawfully increased, denied the
tenant's application and terminated the proceeding.
EB 410267 RT
In the appeal, the tenant requests that the order under appeal be
reversed and contends that the base rent used by the
Administrator is derived from a fraudulent registration. The
tenant contends that the rent registered by the owner reflects an
illegal 10% surcharge on the lease rent, collected by the owner
every month that a room-mate shared the apartment. The tenant
requests reimbursement for lost wages due to court appearance
required by the owner's attempts to evict him. The tenant
further states that the owner deliberately misrepresented the
Administrator's order and attempted to further illegally
increase the rent by sending a letter in which the owner states
that the order indicated that the rent being paid was $10.63 less
than the legal stabilization rent.
The owner states the order must be affirmed and rejects the
tenant's allegations of fraud as patently absurd. The owner
contends that the tenant, having failed to challenge the initial
registration, cannot collaterally attack the legality of the base
date rent so long after its registration. The owner also asserts
that the tenant's request for lost wages reimbursement is outside
the scope of the proceeding.
The Commissioner is of the opinion that this petition should be
Section 2526.1 of the Rent Stabilization Code provides in
pertinent part that the legal regulated rent for purposes of
determining an overcharge shall be deemed to be the rent shown in
the annual registration statement filed four years prior to the
most recent registration statement (or, if more recently filed,
the initial registration statement) plus in each case any
subsequent lawful increases and adjustments. Section 2526.1 also
provides that a complaint must be filed within four years of the
first overcharge alleged, thereby establishing a four year
statute of limitations.
The instant proceeding was not commenced until July 1989, seven
years after the lease upon which the tenant bases the complaint
commenced. Moreover, the tenant was notified in the RR-1, the
apartment Registration admittedly received by the tenant, to
review and check the registered rent against the lease and the
rent being paid. The tenant was further informed that the law
provided only a ninety (90) day period in which to file an
objection to the registration. When the ninety day period passed
without challenge by the tenant, the rent registered was
effectively the legal rent. There is no provision for any
extension of the ninety day limit imposed under the law. Accord:
With regard to the tenant's allegation of fraud, the Commissioner
notes that the tenant was served with a copy of the registration,
was notified of his right under the law, and was not deprived of
the right to file a timely objection to the rent. The fact that
the rent cited in the registration may have represented an
overcharge, if there had been a timely challenge, does not
constitute a fraud so as to impair the tenant's right to file a
challenge for the registration. Cf: CE 410058-RT.
Accordingly, the Commissioner finds that the Administrator
EB 410267 RT
correctly terminated the proceeding.
With regard to the letter submitted by the tenant in which the
owner requests an increase of $10.63 based on the Administrator's
order, the owner is reminded that where the actual rent charged
is less than the rent with maximum allowable increases, the
Lawful Stabilization Rent is limited to the rent actually
The tenant's request for reimbursement for lost wages caused by
court appearances is outside the scope of review of this
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 District Rent Administrator's order be, and the same
hereby is, affirmed.
JOSEPH A. D'AGOSTA