EH 410166 RO

                                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


      ------------------------------------X 
      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             
              
                            PETITIONER    : 
      ------------------------------------X                             


           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 
      been misaddressed.

      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 
      the owner.


      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 
      Guidelines Order.

      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 
      proceedings.

      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 
      information.

      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 
      month period.

      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.


      ISSUED:
                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner






    

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