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.: GB 610069-RO
                                          :  
        COMBINED ASSOCIATES, c/o             RENT ADMINISTRATOR'S
        SPRING & DAVIS REALTY ESTATE         DOCKET NO.: ZAG-610167-R
        MGMT.,              PETITIONER    :  
      ------------------------------------X  TENANT: Mildred Daciewicz  

            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

      On February 7, 1992 the above-named petitioner-owner filed a Petition for 
      Administrative Review against an order issued on January 8, 1992 by the 
      Rent Administrator, 92-31 Union Hall Street, Jamaica, New York concerning 
      the housing accommodations known as 2165 Chatterton Avenue, Bronx, New 
      York, Apartment No. 7F wherein the Rent Administrator determined the 
      tenant's fair market rent appeal.

      The issue herein is whether the Administrator's order was warranted.

      The applicable sections of the Law are Section 26-516 of the Rent 
      Stabilization Law and Section 2522.3 of the Rent Stabilization Code.

      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 in July, 1986 of a 
      rent overcharge complaint by the tenant's husband, in which he stated that 
      he had commenced occupancy on March 15, 1986 at a rent of $450.00 per 
      month, pursuant to a lease commencing April 1, 1986, and that the other 
      tenants in the building were paying an average rent of $196.00.  He also 
      stated that the prior tenant had lived in the apartment for over 40 years, 
      that he had not received a copy of the apartment registration form and 
      that, not having the prior tenant's rental history, he did not know the 
      proper rent, although he considered that he was very possibly being 
      overcharged.

      Among the documents submitted by the owner in answer was a copy of a DC-2 
      notice of initial legal regulated rent, naming Anthony Daciewicz, signed by 
      Arthur Davis, and stating "DC-2 notice served by Thomas Tedeschi, Manager, 
      on tenant March 1, 1985."  The owner later submitted an affidavit of 
      discontinuance and withdrawal of Anthony Daciewicz's complaint, dated 
      October 3, 1991 and purportedly made by Mildred Daciewicz, executrix of 
      Anthony Daciewicz's estate.  It also stated that the parties agreed that 
      the monthly rent would be $518.33 "until the expiration of the present 
      renewal lease on March 31, 1991."  [No "present renewal lease" expiring on 
      March 31, 1991 would have existed on October 3, 1991; in fact, a new tenant 









          ADMIN. REVIEW DOCKET NO.: GB 610069-RO




      had commenced occupancy on July 1, 1990, more than a year before the 
      purported date of the purported withdrawal.]  It was signed by Charles 
      Davis of Combined Associates and notarized by Thomas Peter Tedeschi.  In 
      response, the tenant submitted a notarized statement that she vacated in 
      June, 1990; that she had not had any communication with Mr. Tedeschi since 
      that time; that at no time did the estate of Anthony Daciewicz enter into 
      any agreement to withdraw the complaint; that she had never seen the 
      agreement until it was submitted to the DHCR; and that the name signed as 
      hers was not her signature.

      In an order issued January 8, 1992 the Administrator set the fair market 
      rent at $340.94 per month, this being a 20% Special Guidelines Order No. 17 
      increase over the 1984 Maximum Base Rent ("MBR") plus the 1984 fuel cost 
      adjustment of $15.32.

      In this petition Thomas P. Tedeschi, Managing Agent for Combined 
      Associates, contends in substance that the tenant's complaint was time- 
      barred because it was not made within 90 days of the physical delivery of 
      the DC-2 notice to the tenant on or before March 15, 1986; that the 
      tenant's statement in his complaint did not constitute a legally proper 
      allegation of a rent overcharge or of a rent in excess of the Fair Market 
      Rent; that the Fair Market Rent should have been determined on the basis of 
      the 1986, not 1984, MBR plus allowable fuel cost adjustments; and that the 
      tenant's action is time-barred by Civil Practice Law and Rules Section 
      213(a), which provides that an action on a residential rent overcharge 
      shall be commenced within four years of such overcharge, since a complaint 
      to the DHCR does not constitute legal action to satisfy the statute of 
      limitations and since it has been more than five years since the accrual of 
      the tenant's cause of action.

      In answer, the tenant asserts in substance that she and her husband were 
      never served with a DC-2 form, and that the document purportedly signed by 
      her to withdraw the complaint was completely false.

      The Commissioner is of the opinion that this petition should be denied.

      Section 2522.3 of the Rent Stabilization Code, applicable to complaints 
      filed on and after April 1, 1984, provides, in pertinent part, that the 
      first tenant of an apartment previously subject to the Rent Control Law may 
      file a fair market rent appeal within 90 days of being mailed, by certified 
      mail, a prescribed notice form (DC-2) setting forth the right to appeal the 
      initial legal regulated rent.

      On November 10, 1992 the DHCR requested the owner to provide proof of 
      service of the DC-2 notice on Anthony Daciewicz, such as his signature 
      acknowledging receipt.  No response has been received to date.  When the 
      same request had been made on August 5, 1988 in the proceeding before the 
      Administrator, the owner had submitted only the DC-2 with the notation on 
      the back about having been served on the tenant [Anthony Daciewicz] on 
      March 1, 1986 [which is 11 days before he even signed the lease].  Based on 
      the above, the Commissioner finds that the owner has failed to prove 



          ADMIN. REVIEW DOCKET NO.: GB 610069-RO




      service of the DC-2 notice so as to start the running of the 90 day period 
      to file a fair market rent appeal.  Therefore, the Commissioner finds that 
      the tenant's complaint is effective to challenge the initial legal 
      regulated rent.

      The Commissioner notes that the Maximum Base Rent listed by the owner on 
      the DC-2 form was incorrect.  The 1984 Maximum Base Rent was $268.80; the 
      owner stated a 1986 MBR of $450.00 (which was also the tenant's initial 
      rent).  The DC-2 form was designed to give a tenant information to use in 
      deciding whether to file a fair market rent appeal.  A tenant relying on 
      the information furnished by the owner in this case would have little 
      reason to file such an appeal, since the fair market rent was stated to be 
      calculated above the rent already actually being paid by the tenant.

      Regarding the owner's contention that the tenant's complaint does not 
      constitute a legally proper allegation of a rent in excess of the fair 
      market rent, the tenant was clearly challenging the lawfulness of his rent.  
      When a tenant is the first tenant after decontrol, such challenge is 
      actually a challenge against the initial legal regulated rent, otherwise 
      known as a fair market rent appeal, and it is within the DHCR's discretion 
      to recognize and process it as such.  In addition, this order has found 
      that the owner has not proven the service of a DC-2 form on the tenant, 
      notifying him that he was the first stabilized tenant and had the right to 
      file a fair market rent appeal.  The owner should not be allowed to succeed 
      in its claim that the tenant [unaware of his status as the first stabilized 
      tenant] should not be allowed to have his complaint treated as a fair 
      market rent appeal.

      Regarding the contention that the Fair Market Rent should have been 
      determined on the basis of the 1986, not 1984, MBR plus allowable fuel cost 
      adjustments, the Commissioner notes that MBR orders are issued on a two 
      year cycle, and that Special Guidelines Order Number 17 (applicable to 
      leases commencing between October 1, 1985, and September 30, 1986) used by 
      the Rent Administrator provides that for dwelling units subject to Rent 
      Control on September 30, 1985, which subsequently became vacant after 
      September 30, 1985, the Special Guidelines amount to be utilized in 
      determining the fair market rent is 20% above the sum of the 1984-85 
      maximum base rent, plus the current allowable fuel cost adjustment as 
      established under Rent Control.

      Regarding the owner's contention that an action on a residential rent 
      overcharge has a statute of limitations of four years: Civil Practice Law 
      and Rules Section 213(a), which provides that "[a]n action on a residential 
      rent overcharge shall be commenced within four years of such overcharge", 
      is not relevant to this proceeding since it is not an "action."  CPLR 
      Section 101 provides that "[t]he civil practice law and rules shall govern 
      the procedure in civil judicial proceedings in all courts of the state and 
      before all judges, except where the procedure is regulated by inconsisent 
      statute."  Generally speaking, the DHCR and the Courts have concurrent 
      jurisdiction to decide complaints filed under the Rent Stabilization Law 
      and Code, although the Courts will usually in the first instance defer to 
      the administrative agency in its areas of expertise.  For his remedy the 







          ADMIN. REVIEW DOCKET NO.: GB 610069-RO




      complainant chose the administrative agency rather than the Court.  Any 
      resort the tenant's estate might now have to the Courts regarding the 
      lawful rent or overcharges would not be an action on the lease contract, 
      but rather a CPLR Article 78 petition against the administrative agency 
      determination.  While there is a time limit to file such a legal 
      proceeding, the time runs from the date of the agency's order and not from 
      the date of either an overcharge or of an administrative complaint.

      Because of the possibility that Anthony and Mildred Daciewicz, similarly to 
      some other tenants in this building, were receiving a senior citizen rent 
      increase exemption, a copy of this order is being sent to the N.Y.C. 
      Department for the Aging, SCRIE Division, so that an appropriate adjustment 
      can be made in the real estate tax abatement the owner has been granted, if 
      so 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.  A 
      copy of this determination is being sent to the current tenant.

      If the owner does not take appropriate action to comply with this order 
      within sixty days from the date of issuance of this order, the tenant's 
      estate may bring an appropriate action in a court of competent 
      jurisdiction.

      THEREFORE, in accordance with the Rent Stabilization Law and Code, it is

      ORDERED, that this petition be, and the same hereby is, denied and that the 
      District Rent Administrator's order be, and the same hereby is, affirmed.  
      The lawful stabilization rent is $340.94 per month in the lease from April 
      1, 1986 to March 31, 1988.


      ISSUED:






                                                                    
                                           JOSEPH A. D'AGOSTA
                                           Deputy Commissioner




                                                    
    

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