DHCR Decisions
EB410309RO, BI410283RO
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
APPEALS OF DOCKET NO.EB410309RO
: BI410283RO
DRO DOCKET NO.L3117390RT
319 EAST 50TH STREET ASSOCIATES 46819
TENANT: L. VACHRIS BERNHARD
PETITIONER :
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ORDER AND OPINION GRANTING PETITIONS FOR ADMINISTRATIVE REVIEW
On February 16, 1990 and September 24, 1987, the above-named
petitioner-owner filed Petitions for Administrative Review against
orders issued on February 6, 1990 and September 16, 1987
respectively, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
319 East 50th Street, New York, New York, Apartment No. 10C wherein
the Rent Administrator determined that the owner had overcharged the
tenant. These petitions are being consolidated for determination
herein.
The Administrative Appeals are being determined pursuant to the
provisions of Section 2520.13 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's orders
were warranted.
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant to
the issue raised by the administrative appeals.
These proceedings were commenced by the tenant filing a rent
overcharge complaint and a fair market rent appeal application prior
to April 1, 1984 and a tenant's objection to rent/services
registration in November, 1984. During the course of the rent
overcharge proceeding, the tenant stated in substance that she first
moved to the subject apartment as a subtenant in February, 1977 at
a rental of $276.00 which was increased to $296.70 in January, 1979,
and $304.70 in 1980, and received a lease in her own name on
October 1, 1981 at a rental of $379.78 per month.
In response to the tenant's complaints, the owner stated in
substance that the tenant herein was an illegal subtenant subject to
eviction and that by a so ordered stipulation, the owner entered
into an agreement with the tenant herein giving the tenant a three
year vacancy lease in her own name commencing October 1, 1981 at a
rental of $379.78 per month. In support of such contention the
owner submitted a copy of the so ordered civil court stipulation
signed by the tenant herein, her attorney, the owner and owner's
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attorney. Said stipulation dated October 2, 1981 provided that the
owner would give a three year lease to the tenant herein commencing
October 1, 1981 at a rental of $379.78; that the tenant would pay
all arrears in rent through September 1981 at a rental of $304.70
per month; and that the tenant herein would withdraw with prejudice
upon execution of the lease all pending CAB (Conciliation and
Appeals Board - the agency formerly charged with enforcing the Rent
Stabilization Law and Code) and stabilization proceedings.
In Order Number 46819, the Rent Administrator determined that
the tenant had been overcharged in the amount of $4,587.91 during
the period from October 1, 1981 through September 30, 1987. In
Order Number L3117390RT, the Rent Administrator determined that the
tenant had been overcharged in the amount of $9,199.99 during the
period from February 1, 1977 through January 31. 1991 based on the
owner's failure to supply a full rental history, and stated that
said order superseded the order issued under docket number 46819.
In these petitions, the owner alleges in substance that based
on the court stipulation, no rent overcharge occurred. The owner
submitted a copy of the stipulation along with its petitions.
In response to the owner's petitions, the tenant stated in
substance that she was not an illegal subtenant because the owner
accepted rent checks in her name from 1977.
The Commissioner is of the opinion that these petitions should
be granted.
Section 2520.13 of the Rent Stabilization Code provides in
pertinent part that an agreement by the tenant to waive the benefit
of any provision of the Rent Stabilization Law or 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 Commissioner is of the opinion that
the October 2, 1981 Civil Court so ordered stipulation wherein the
tenant was represented by counsel meets the requirements for a
negotiated settlement pursuant to Section 2520.13. In said
stipulation, the tenant agreed to pay rent arrears prior to October
1, 1981 on the basis of a rent of $304.70 per month and agreed to a
rent of $379.78 per month pursuant to a three year vacancy lease
commencing October 1, 1981. In return, the tenant was acknowledged
as the tenant of the subject apartment and the prime tenant lost her
rights to the subject apartment. Further, the tenant agreed to
withdraw with prejudice any pending complaints before the CAB. The
Commissioner finds that the tenant's complaints herein, although not
pending at the time the stipulation was filed, dispute the amount of
the rent as determined in the stipulation, that the amount of rent
EB410309RO, BI410283RO
as determined in the stipulation does not appear excessive, and that
accordingly the tenant's complaints herein should not have been
adjudicated on a default basis by the DHCR without the acceptance of
the rent determinations in the stipulation. It is noted that using
the stipulation rent amounts of $304.70 and $379.78 and basing
future rent guideline increases due to lease renewals on such
amounts results in a finding that no rent overcharges in fact
occurred. Therefore, the Rent Administrator's orders finding a rent
overcharge must be revoked.
If the owner has already complied with the Rent Administrator's
orders, and there are arrears due to the owner as a result of the
instant determination, the tenant shall be permitted to pay off the
arrears in twenty four equal monthly installments. Should the
tenant vacate after the issuance of this order or have already
vacated, said arrears shall be payable immediately.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that these petitions for administrative review be, and
the same hereby are, granted, and, that the orders of the Rent
Administrator be, and the same hereby are, revoked and it is found
that no rent overcharge occurred.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
EB410309RO, BI410283RO
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