EH 410166 RO
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. EH 410166 RO
: DISTRICT RENT OFFICE
Dennis liberatos d/b/a DOCKET NO. 59355
G.M.V. Leasing Co.,
TENANT: Charla Moore
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 1, 1990, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on June 29, 1990, by the
Rent Administrator, 92-31 Union Hall Street, Jamaica, New York,
concerning the housing accommodations known as 165 Bleecker Street, New
York, New York, Apartment No. 3A, wherein the Administrator directed the
owner to adjust the rent and to refund to the tenant all excess rent.
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 appeal.
This proceeding was commenced on April 30, 1986 when the tenant filed a
rent overcharge complaint and an objection to the registration, alleging
that she had not received the apartment registration.
A copy of the complaint along with various answer forms and rent forms
was sent to the owner on July 9, 1986.
On August 26, 1986, a notice requesting the rental history from April 1,
1980 was sent to the owner.
On September 15, 1986, the owner responded that he had received the
August 26th letter but had not received the complaint which possibly had
A copy of the complaint with the answering package was remailed to the
owner at his own address on September 18, 1986 and to the owner in care
of his attorney on June 30, 1989.
On November 14, 1986, a follow-up notice to the complaint was sent to
On July 31, 1989, the owner was sent information relating to procedures
involved in determining the fair market rent.
EH 410166 RO
By summary notice dated April 4, 1990, the owner was notified that the
fair market rent would be established on the basis solely of the 1980
Maximum Rent increased by the appropriate Special Fair Market Rent
In the order issued on June 29, 1990, the Administrator established the
fair market rent at $253.25 as of April 1, 1980 and directed the owner
to refund $23,093.97 to the tenant.
In his appeal, the owner contends that the order should be reversed on
the following grounds: 1) the DHCR lacks jurisdiction because service of
the tenant's objection was not properly made; 2) the owner has not been
given proper notice of this proceeding nor an opportunity to refute the
tenant's allegations. The owner received a tenant's complaint under
Docket No. CJ 410111 R but received no other communication; 3) since the
claim is for a period of more than two years from the date hereof, the
claim is time barred; (4) the parties have settled their differences and
agreed to the rent pursuant to stipulations of settlement in court
proceedings; and 5) the owner had requested abeyance of the agency's
proceeding pending the outcome of then-pending non-payment proceedings.
The tenant requests that the order be affirmed to the extent that the
rent is reduced and that the order be modified to award treble damages,
that pursuant to the decision in Sakraf Properties v. Emicke, 529,
N.Y.S. 2d 951 (Sup. Ct., NY. Co. 1988) the tenant's failure to file her
own PAR does not bar consideration of the treble damages issue, that the
overcharge be recalculated to correct an error in calculation and that
reasonable costs and attorney's fees be awarded. In response to the
owner's contentions, the tenant asserts that there is no authority for
limiting an award of rent overcharge to two years, that applicable time
limitations as set forth in the code have been met by the tenant and the
agency. The tenant also asserts that the owner's argument with respect
to the stipulations of settlement are similarly without merit since Code
Section 2520.13 renders such waiver of benefit void. The tenant further
contends that the owner was given full opportunity to respond but he
failed to present any evidence on the overcharge issue and that the
additional docket number cited by the owner was merged into this
After careful consideration, the Commissioner is of the opinion that
this petition should be denied.
Review of the record reveals that the owner was correctly served with
the complaint under the instant DRO docket number two times and
thereafter was given ample opportunity to respond to the merits of the
tenant's objections. Nevertheless, the owner failed to submit requested
Section 2522.3 of the Code limits an appeal of the Initial Legal
Registered Rent on the grounds that it exceeds the Fair Market Rent to
a 90 day period after the owner mails notice to the tenant of the
Initial Legal Registered Rent. A search of the records of the DHCR
discloses that the owner did not properly file an initial registration
for the subject apartment. Hence, the tenant's objection was timely
filed. Moreover, the Code contains no two year limitations to recovery
of excess rent.
EH 410166 RO
Pursuant to Section 2520.13 of the Code, an agreement by the tenant to
waive the benefit of any provision of the RSL or the 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 any complaint pending before the DHCR. It is noted that the
tenant did not agree to withdraw her complaint. Nor was she represented
by counsel. Accordingly, the Commissioner finds that the tenant did not
waive the benefits afforded by the law.
The owner's initiation of a non-payment proceeding against the tenant
while this proceeding was pending did not impact on the establishment of
the fair market rent. Therefore, it was not necessary to hold in
abeyance the determination of the legal stabilization rent until the
conclusion of the non-payment proceedings.
With respect to the tenant's requests, the Commissioner notes that the
tenant did not file her own PAR which, notwithstanding the holding in
the Sakraf case, acts as a bar to consideration of contentions raised by
the tenant not related to the owner's PAR. Moreover, the penalty of
treble damages or interest is inapplicable to Fair Market Rent Appeals
(Code Section 2522.3) but applies only to overcharges (Code Section
2526.1). The Administrator did not err in not imposing a penalty on the
excess rent collected.
Because this determination concerns lawful rents only through
April 30, 1990, the owner is cautioned to adjust subsequent rents to an
amount no greater than that determined by the Rent Administrator's order
plus any lawful increases.
The owner is directed to make the refund of excess rent in cash, check
or money order or the tenant may credit such refund against future rents
over a period not in excess of six months. If the refund exceeds the
total rent due for six months, the tenant at her option may continue to
abate her rent until the refund is fully credited, or request the
present owner to refund any balance outstanding at the end of such six
THEREFORE, in accordance with the provisions of the Rent Stabilization
Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied, and the
Rent Administrator's order be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner