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.: 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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