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
APPEAL OF DOCKET NO. EI110274RO
: DRO DOCKET NO.ZBL110215R
47-40 41st Realty Corp. TENANT: Mary Ramirez
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 14, 1990, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
August 29, 1990, by the Rent Administrator, concerning the housing
accommodations known as 47-40 41st Street, Sunnyside, New York,
Apartment No.1D, wherein the Rent Administrator determined that the
owner had overcharged the tenant.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2526.1 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order 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
issue raised by the administrative appeal.
This proceeding was originally commenced by the filing of a rent
overcharge complaint by the tenant on December 7, 1987. The owner
was served with a copy of the tenant's complaint and submitted a
complete rental history as required. The owner stated in substance
that pursuant to a "so ordered" stipulation, the tenant had agreed
to discontinue all cases pending with the DHCR and the DHCR has no
further jurisdiction. Additionally, the owner contended that the
DHCR had provided him with a certified rent history of the subject
housing accommodation, and that, based thereon, at no time was
there a rent overcharge. In support of his contentions, the owner
submitted photocopies of the stipulation and of the certified rent
records.
Under Docket Number ZBL110215R, the Rent Administrator established
the lawful stabilized rent as $205.76 effective April 1, 1984,
determined that the tenant had been overcharged and directed a
refund to the tenant of $7870.86, including treble damages on
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EI110274RO
overcharges collected on and after April 1, 1984.
In this petition, the owner reiterates its allegations made below,
that the tenant had discontinued all cases pending with the DHCR,
and the DHCR has no further jurisdiction; that the issuance by the
DHCR of an Order Finding Rent Overcharge directly violates the
terms of the court-ordered stipulation; and that the certified rent
history at no time reflects a rent overcharge.
In answer to the owner's petition, the tenant stated, among other
things, that the document submitted by the owner was not a court
ordered stipulation, but rather was a consent agreement signed
under duress during an eviction proceeding and that it was neither
signed nor "so-ordered" by the judge.
The Commissioner is of the opinion that this petition should be
denied.
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 this Code
is void; provided, however, that a tenant may withdraw, with
prejudice, any complaint pending before the DHCR, based upon a
negotiated settlement between the parties and with the approval of
the DHCR or a court of competent jurisdiction.
An examination of the record in this case discloses that the
stipulation submitted by the owner in support of his contentions
was neither signed nor "so-ordered" by the Housing Court judge, and
that, accordingly, it does not meet the criteria set forth in the
Rent Stabilization Code, and the DHCR thus retains jurisdiction
over this proceeding. With regard to the assertion by the owner
that the certification of rents registered with the DHCR precludes
a finding of overcharge by the DHCR, the Commissioner notes that
certification merely ensures that the copy provided is a true and
complete copy of the copy filed with the DHCR. No representation
is made or intended that the rents as recorded therein are
determined to be lawful stabilized rents.
Accordingly, the Rent Administrator's order was warranted.
The owner is directed to reflect the findings and determinations
made in this order on all future registration statements, including
those for the current year if not already filed, citing this Order
as the basis for the change. Registration statements already on
file, however, should not be amended to reflect the findings and
determinations made in this order. The owner is further directed
to adjust subsequent rents to an amount no greater than that
determined by this order plus any lawful increases.
The Commissioner has determined in this Order and Opinion that the
owner collected overcharges of $7870.86. This Order may, upon
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expiration of the period for seeking review of this Order and
Opinion pursuant to Article Seventy-eight of the Civil Practice Law
and Rules, be filed and enforced as a judgment or not in excess of
twenty percent per month of the overcharge may be offset against
any rent thereafter due the owner. Where the tenant credits the
overcharge, the tenant may add to the overcharge, or where the
tenant files this Order as a judgment, the County Clerk may add to
the overcharge, interest at the rate payable on a judgment pursuant
to Section 5004 of the Civil Practice law and Rules from the
issuance date of the Rent Administrator's Order to the issuance
date of the Commissioner's Order.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and the
same hereby is, denied, and, that the order of the Rent
Administrator be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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