Docket Number: FG 410282-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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FG 410282-RO
BRADFORD N. SWETT & ASSOCIATES, DRO DOCKET NO.: BJ 410263-R
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On July 11, 1991, the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on June 7, 1991
by the Rent Administrator, 92-31 Union Hall Street, Jamaica, New
York, concerning housing accommodations known as apartment #4N at
1823 Second Avenue, New York, New York.
The issue under appeal is whether the Administrator's order was
warranted.
The proceeding was commenced with the filing by the tenant of a
Tenant's Complaint of Rent Overcharge on October 15, 1987. The
tenant took occupancy on June 15, 1987 at a rent of $950.00 for a
lease commencing June 15, 1987 and terminating June 14, 1989.
In response, the owner stated that the apartment was formerly rent
controlled. The owner submitted copies of forms DC-2A and RR-1,
served on July 13, 1987.
On July 30, 1990 the proceeding was reassigned for processing as a
Fair Market Rent Appeal. On April 17, 1991 the owner requested
dismissal, alleging that the appeal, having been filed more than 90
days after service of Forms DC-2 and RR-1 on the tenant, was not
timely.
By letter dated June 5, 1991, received by the Division on June 7,
1991, the owner stated that the tenant wanted to withdraw her
complaint pursuant to a stipulation wherein the tenant agreed to
withdraw the proceeding. With its petition the owner submitted a
copy of the stipulation dated May 16, 1991 and a copy of a letter
from the tenant to the Division dated May 16, 1991, date-stamped
received by the Division May 21, 1991, wherein the tenant stated
that she had reached a settlement with the owner and wished to
withdraw her complaint. The owner noted that the initial
Administrator's order issued in this case, dated May 4, was
actually mailed on June 4, 1991. The owner enclosed the Division's
mailing envelope, postmarked June 4, 1991 in support of that
contention.
Docket Number: FG 410282-RO
On June 7, 1991 an Amended Order and Determination was issued,
establishing the initial legal registered rent. The amendment was
the correction of the issuance date only.
In its petition for administrative review, the owner contends that
the Administrator's order should not have been issued, based on the
withdrawal of the tenant's complaint; that said withdrawal was
pursuant to a so-ordered stipulation by Justice J. Klein; and that
the owner's reliance upon the withdrawal letter precluded its
submission of comparability data.
By letter of June 13, 1991, the tenant advised that she had moved
to withdraw her consent order based on a material misrepresentation
by the owner, i.e., that the Division's determination, purportedly
dated May 4, 1991, was known to said owner. On July 29, 1991,
Judge Klein denied the motion.
The Commissioner is of the opinion that this petition should be
granted.
Section 2520.13 of the Rent Stabilization Code, provides, in
pertinent part: "An agreement by the tenant to waive the benefit
of any provision of the RSL or this 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."
The Commissioner finds that the criteria of Section 2520.13 were
met by the parties, and that the tenant's withdrawal and so-ordered
stipulation of May 16, 1991 precluded the issuance of the Order by
the Rent Administrator.
It appears from the record that the tenant's letter requesting
withdrawal did not reach the Administrator in time to prevent
issuance of the Order, although delivered to the Division on May
21, 1991. It is noted that the Administrator's order was
originally issued on June 4, 1991 (as evidenced by the mailing
envelope submitted by the owner), after the parties had entered
into the stipulation.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, granted,
and that the Rent Administrator's order be, and the same hereby is,
revoked.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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