GL410109RT
                             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     S.J.R. 6165
      IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW     
      APPEAL OF                               DOCKET NOS.: GL410109RT
                                            
                                              DRO DOCKET NOS.:
                                              ZGI410013RP
                                              (CC410055RT)
           MELVYN L. MEER, TENANT,            (GC410548RT) 
                                              (L3114599R) (CDR32540)
                                              (CD410321RO)
           
                             PETITIONER       OWNER:  WILLIAM B. MAY COMPANY
      -----------------------------------X                                  

                   ORDER AND OPINION DENYING TENANT'S PETITION
                            FOR ADMINISTRATIVE REVIEW


      On December 7, 1992 the above-named petitioner-tenant filed a Petition 
      for Administrative Review against an order issued on November 18, 1992 
      by the Rent Administrator, 92-31 Union Hall Street, Jamaica, New York 
      concerning housing accommodations known as Apartment 17H at 201 East 
      19th Street, New York, New York wherein the Rent Administrator 
      determined that there had been no rent overcharge.

      The Commissioner notes that this proceeding was initiated by the filing 
      of a rent overcharge complaint prior to April 1, 1984.  Sections 
      2526.1(a)(4) and 2521.1(d) of the Rent Stabilization Code (effective May 
      1, 1987) governing rent overcharge and fair market rent proceedings 
      provide that determination of these matters be based upon the law or 
      code provisions in effect on March 31, 1984.  Therefore, unless 
      otherwise indicated, reference to Sections of the Rent Stabilization 
      Code (Code) contained herein are to the Code in effect on April 30, 
      1987.

      The issues in this proceeding concern the propriety of reopening the 
      Rent Administrator's February 1, 1988 determination in Docket No. 
      L3114599R for de novo consideration and the propriety of the 
      Administrator having given res judicata effect to an order issued by the 
      Conciliation and Appeals Board ("C.A.B.") in October, 1979.  That order 
      determined a rent overcharge complaint filed by the same tenant as 
      herein against the same owner as herein and found an overcharge of $0.29 
      per month, an overcharge which the record shows was immediately 
      eliminated.

      This proceeding was originally commenced in 1984 by the filing of a rent 
      overcharge complaint (Docket No. L-3114599-R) by the tenant concerning 












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      housing accommodations known as Apartment 17-H at 201 East l9th Street, 
      New York, New York.  The tenant took occupancy pursuant to a lease 
      commencing October 1, 1977 and expiring September 30, 1979 at a monthly 
      rent of $525.00.

      In Order Number CDR 32,540, issued on February 1, 1988 under Docket No. 
      L 3114599-R, the District Rent Administrator established the lawful 
      stabilization rent based on the managing agent's failure to provide a 
      complete rental history, determined that the tenant had been overcharged 
      in the amount of $10,669.19, and directed the refund of such amount to 
      the tenant.

      Both the managing agent on behalf of the owner and the tenant filed 
      Petitions for Administrative Review of the Administrator's order. The 
      owner's Petition for Administrative Review (Docket No. CD410321RO) was 
      dismissed in an order issued on November 2, 1990 as having been untimely 
      filed.

      The tenant's petition (Docket No. CC410055RT) asserted that the District 
      Rent Administrator's order contained no determination that the 
      overcharge was not willful and that treble damages should therefore have 
      been awarded.

      In answer to the petition, the managing agent asserted that, as 
      indicated in the April 1977 rent roll submitted by the managing agent 
      with its answer, the complainant tenant's initial rent was less than the 
      last rent charged the prior tenant and that there was no willful 
      overcharge, or any overcharge.

      In reply, the tenant asserted, among other things, that any challenge to 
      the original order by the managing agent must be deemed untimely and 
      that new evidence may not be considered on administrative appeal.

      In supplement to its answer to the tenant's petition, the managing agent 
      contended that the Administrator properly determined that the overcharge 
      was not willful and that the imposition of treble damages was not 
      warranted.  The managing agent asserted that it was unable to produce a 
      complete rent history from June 30, 1974 because it did not receive such 
      documentation when it took over management of the building.  The 
      managing agent further asserted that the tenant filed two overcharge 
      complaints with the CAB under Docket Numbers TC-24736-G and TC-25917-G, 
      that the determinations in these earlier proceedings are binding on the 
      Administrator, and that the records in those proceedings contain a full 
      rent history for the subject apartment.  With its supplementary answer 
      the managing agent submitted letters to the CAB from the prior managing 
      agent dated June 16, 1978 and July 17, 1978 reciting the full rent 
      history for the subject apartment, a letter to the CAB from the prior 
      managing agent dated September 5, 1979 reciting new equipment installed 
      in the subject apartment and invoices and cancelled checks for these 
      items, and a letter to the CAB from the prior managing agent dated July 
      7, 1978 referring to two major capital improvement rent increases.







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      By subsequent correspondence, the managing agent submitted a letter to 
      the CAB from the tenant dated October 23, 1978 in relation to the CAB 
      proceeding filed by the tenant in which the tenant asserted, among other 
      things, that the rent records of the prior managing agent for October 
      1973 and October 1974 reflect that the relationship between the prior 
      tenant and the owner was not at arm's length.  

      By notices dated August 23, 1990, both the managing agent and tenant 
      were requested to submit copies of the CAB orders.  The tenant did not 
      respond to this notice.  The managing agent responded by stating that it 
      was unable to comply with the request.

      In an order issued on November 2, 1990 under Docket No. CC 410055-RT, 
      the Commissioner granted the tenant's petition.  The Commissioner found 
      that a diligent search of the DHCR's records had failed to locate the 
      files containing the earlier overcharge complaints filed by the tenant 
      with the CAB, that the parties had failed to submit copies of orders 
      from those cases, and therefore those prior cases could not be used as 
      a basis for the Commissioner's determination.  The Commissioner further 
      found that the managing agent had failed to establish by a preponderance 
      of the evidence that the overcharge was not willful and imposed treble 
      damages, resulting in a total overcharge amount of $15,841.72.

      By letter dated November 7, 1990 the managing agent requested reopening 
      of the proceeding and reconsideration of the Commissioner's order, 
      asserting that the Commissioner had failed to consider the full rental 
      history available in the prior CAB proceedings which indicated that the 
      tenant was not overcharged.

      By order issued on December 3, 1990 the Commissioner found that the 
      rental history was available in the record contained in the current and 
      prior proceedings instituted by the tenant and reopened the proceeding 
      due to an irregularity in a vital matter.  The reopened proceeding 
      continued to be processed under Docket Nos. L-3114599-R and CC410055RT.

      An oral hearing was held on February 24, 1991 at which the tenant 
      testified that he did not recall filing any overcharge complaint with 
      the CAB, and that he had no knowledge of the rental history of his 
      apartment.


      By subsequent correspondence, the owner asserted that on reconsideration 
      the rental history should be considered and the lawful stabilized rent 
      should be determined, and the tenant asserted that on reconsideration 
      only the issue of treble damages should be considered.

      During the reopened proceeding the Division made additional efforts to 
      locate the tenant's CAB overcharge complaint files.  Division records 
      indicated that the files were stored in the "Iron Mountain" storage 
      facility in Rosendale, New York.  Therefore a request was made to "Iron 
      Mountain" for those files.  The storage facility reported back that, 
      while the correct storage box was located at "Iron Mountain", the files 












          GL410109RT

      from the tenant's CAB proceedings were not in the box.

      By order issued November 15, 1991, the Commissioner determined that the 
      tenant should be estopped from unjustly benefitting from the loss of 
      original records.  The Commissioner found that record contained 
      sufficiently reliable evidence as to the prior CAB proceedings and the 
      rent history.  The Commissioner therefore determined the lawful 
      stabilized rent using the available records and found that the tenant 
      had not been overcharged.

      Subsequent thereto the tenant commenced a proceeding pursuant to Article 
      78 of the Civil Practice Law and Rules challenging the Commissioner's 
      November 15, 1991 order and opinion as arbitrary and capricious, and an 
      abuse of discretion.

      After commencement of the tenant's Article 78 proceeding, CAB Opinion 
      Number 10,821 (CAB Docket Number 25917 G) was located.  It was 
      discovered that a Division employee, who had previously worked at the 
      CAB, had kept certain CAB log books containing information which enabled 
      the CAB opinion to be located.  The opinion, which was issued on October 
      25, 1979 and which determined the tenant's overcharge proceeding, 
      calculated the lawful stabilized rent based on the rental history from 
      May 31, 1968 and found an overcharge of only $0.29 per month for the 
      tenant's October 1, 1979 to September 30, 1982 lease term.

      On March 19, 1992, the tenant filed a Petition for Administrative Review 
      against CAB Opinion Number 10,821. By order issued on May 8, 1992 under 
      Docket No. GC 410548 RT, the tenant's petition against the CAB opinion 
      was dismissed as untimely. By order issued on June 19, 1992, the 
      Commissioner's May 8, 1992 order was revoked and the tenant's 
      administrative appeal was reopened for further consideration.

      By order of Justice Eugene L. Nardelli dated August 5, 1992, the entire 
      overcharge proceedinq was remitted to the DHCR for reconsideration.

      On September 18, 1992 the Commissioner issued an order denying the 
      tenant's Petition for Administrative Review under Docket No. GC410548RT, 
      which challenged the 1979 CAB opinion, on the ground that there was no 
      administrative review procedure applicable to challenge an order of the 
      CAB.  The order also directed the reopening of Administrator's Docket 
      No. L3114599-R, based upon possible fraud by the tenant and upon an 
      irregularity in a vital matter in that the 1979 CAB order was not 
      considered in the determination, and remanded Administrative Review 
      Docket No. CC410055RT (the tenant's Petition for Administrative Review) 
      to the Administrator for reconsideration together with the reopened 
      Administrator's proceeding.  The order directed the Administrator "to 
      conduct a hearing on the question of fraud or other violations of law."  
      On October 20, 1992 a correcting order was issued, directing that a 
      hearing be held only "if appropriate."

      With regard to the grounds for reopening the Administrator's proceeding 
      and remanding the tenant's PAR proceeding, the Commissioner's September 






          GL410109RT

      18, 1992 order found as follows:

                As noted above, subsequent to issuance of the 
                Commissioner's November 15, 1991 order and the 
                commencement of the tenant's Article 78 proceeding 
                challenging that order, DHCR located a copy of CAB 
                Opinion Number 10,821 issued on October 25, 1979, 
                which decided the tenant's rent overcharge 
                complaint filed with the CAB under Docket No. 
                25917-G.  The lawful rent as stated in the CAB 
                order is identical with the rent that Mr. Meer 
                affirmed he paid in the within rent overcharge 
                complaint. It appears from the CAB order, as well 
                as from Mr. Meer's letter of October 23, 1978 to 
                the CAB, that Mr. Meer took an active role in that 
                proceeding.  It also appears from agency records 
                that the CAB order was duly mailed to the parties 
                on the date of issuance.  In fact, the CAB found a 
                discrepancy of $0.29 between the latest lawful rent 
                and the rent actually charged, and directed the 
                landlord to make the correction.  This appears to 
                have been done since Mr. Meer listed the corrected 
                amount in the within rent overcharge complaint even 
                though the lease renewal form for the rent period 
                in question, signed by him, states the incorrect 
                amount.

                In response to a notice to Mr. Meer, dated June 18, 
                1987, he stated the following in answer to Question 
                9 of the rent overcharge complaint:



                     "Rental records show that rent jumped by 
                     illegal amount (from $389.21 to $500.00) 
                     between October 1973 and October 1974. 
                     Consequently all charges since have been 
                     overcharges.  Basis are prints-outs of rent 
                     history."



                That information is identical to the information 
                contained in Mr. Meer's letter of October 23, 1978 
                to the CAB.  There is no indication in the record 
                that the information came from any source other 
                than the prior CAB proceeding.

                At the oral hearing held on February 6, 1991, Mr. 
                Meer testified that he did not recall filing any 
                CAB complaints, nor any follow-up communications 
                with regard to those complaints, although he did 












          GL410109RT

                concede to the filing of at least one of them.  He 
                also denied knowledge of the rent history for his 
                apartment.  In view of the other evidence of 
                record, Mr. Meer's testimony lacks credibility.

                In the rent overcharge complaint, affirmed by Mr. 
                Meer on March 30, 1984, he left blank the answer to 
                Question 15, Part 5, which asks for a listing of 
                "any other Conciliation and Appeals Board 
                proceedings concerning your apartment of which you 
                have knowledge..."  Had information been provided 
                by Mr. Meer about the prior rent overcharge 
                proceeding, it would have been clear that there was 
                no basis for a rent overcharge award in the instant 
                proceeding.

                Under the circumstances, there is not only an 
                irregularity in a vital matter in that the prior 
                CAB order was not considered in the determination, 
                but the possibility that fraud was committed in the 
                filing of the rent overcharge complaint by Mr. 
                Meer.

      The remanded proceeding was assigned Docket No. GI 410013 RP.  On 
      November 18, 1992 the Administrator issued an order which  determined 
      that the 1979 CAB order, attached and made a part of the Administrator's 
      order, should be affirmed, and found that there was no overcharge 
      because the record showed that the $0.29 per month overcharge found in 
      the 1979 CAB order had been adjusted by the landlord.

      Both the owner and the tenant filed petitions for administrative review 
      of the Administrator's November 18, 1992 order.

      The owner's Petition for Administrative Review was assigned Docket No. 
      GL410086-RO.  On March 9, 1993 the owner's attorney sent a letter to 
      DHCR withdrawing the appeal.  The Commissioner therefore issued an order 
      on May 13, 1993 terminating the owner's appeal.



      The tenant's Petition (Docket No. GL 410109-RT) contends in substance: 
      (1) that he submitted a letter requesting an opportunity to see the 
      record in advance of making a submission regarding the issues under 
      dispute, but the letter was ignored so that he was denied the 
      opportunity to either see the record or make a submission; (2) that the 
      Administrator was without authority to issue the November 18, 1992 order 
      because the time for a remand from the Deputy Commissioner expired when 
      the Article 78 proceeding was commenced in December, 1991, per Section 
      2529.9 of the current Rent Stabilization Code, and because the tenant's 
      alleged leaving of an item blank on his complaint does not constitute an 
      irregularity in a vital matter; (3) that the Court of Appeals held in 
      54/55 Sixth Realty Corp. v. Levanthal that the rent agency's failure to 






          GL410109RT

      find its own records is not such an irregularity; (4) that the owner 
      waived the right to assert the 1979 CAB opinion as res judicata, since 
      it did not raise the defense until eight years after the tenant's 1984 
      complaint; (5) that in New York a res judicata effect has never been 
      applied to decisions of administrative agencies except where the agency 
      makes a fully "quasi-judicial" determination, reviewable immediately by 
      the Appellate Division upon a writ of certiorari; and (6) that the DHCR 
      does not make quasi-judicial determinations, so res judicata may not be 
      accorded the 1979 order.

      In answer, the owner asserts in substance that in its appeal against the 
      Administrator's order it stated that a full rental history had been 
      submitted in the earlier CAB proceedings; that it was not until sometime 
      after that appeal was dismissed for untimeliness, and after the 
      proceeding was subsequently reopened due to irregularities in vital 
      matters, that it learned through a review of DHCR files that the tenant 
      had submitted a correspondence reciting the prior rental history; that 
      the Commissioner's November 15, 1991 order, based on the rental history 
      submitted in the earlier CAB proceeding, subsequently found no default 
      and no overcharge; that during an ensuing Article 78 proceeding the DHCR 
      produced the 1979 CAB order determining the tenant's initial rent; that 
      reconsideration was properly granted, since the tenant did not disclose 
      either a prior proceeding where he had recited a rental history from 
      1973 or an order determining the rent, both of which the owner would 
      have been entitled to rely on to avoid a default, and since the DHCR did 
      not in the original proceeding check its records for the 1979 CAB order; 
      that 54/55 Sixth Realty Corp. is not applicable since this proceeding 
      involves not just "facts" in the DHCR's records, but an actual 
      administrative determination deciding the tenant's initial rent; that 
      the Administrator was not deprived of jurisdiction to issue the order 
      under appeal herein, by virtue of an Article 78 proceeding, since the 
      Court specifically denied the tenant's Article 78 petition and remitted 
      the matter to the DHCR to issue a new order; that the 1979 CAB opinion 
      should have res judicata effect; that in any event a full rental history 
      was available in the record of both the current as well as the CAB 
      proceedings; and that the tenant's assertion that he was denied an 
      opportunity to see the Administrative record and make a submission is 
      without merit, since his November 9, 1992 letter was not sent to the 
      DHCR's Freedom of Information Law unit and since the tenant has not set 
      forth any evidence of later attempts to view the file.

      In response, the tenant contends in substance that, regardless of 
      whether there was a change in the management company after the 1979 CAB 
      order, the fact remains that the owner defaulted in its obligation to 
      produce rent records; that the owner's petition against the February 1, 
      1988 order is not relevant since it was untimely; that the owner first 
      informed the DHCR, four years after the DHCR's request for data and only 
      in response to the tenant's petition, that it might have earlier data; 
      that he has no memory of being invited to review the record; that the 
      owner is incorrect in stating that the tenant did not contend that he 
      was unaware of the 1979 CAB order, as he has repeatedly contended that 
      he was unaware; that he cannot respond to allegations about papers in 












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      the file, including his 1984 complaint, since he has not been given an 
      opportunity to see the file; that an "irregularity in a vital matter" 
      will warrant reconsideration only if it is a procedural irregularity 
      that would deprive a party of due process; that the 1979 CAB decision is 
      exactly a fact which was in the DHCR's own records; that the tenant was 
      prejudiced by the DHCR's production of the 1979 CAB order because from 
      1988 through at least 1991 he had an order giving him a rent reduction, 
      and adjusted his budgets accordingly; that it is for exactly that reason 
      that res judicata is waived if not timely asserted; that the Court may 
      not create new authority for the DHCR to issue a superseding order once 
      a proceeding for judicial review has been commenced; that res judicata 
      effect may not be given the 1979 CAB order without seeing the full 
      record of the proceeding, since it was not fully quasi-judicial and many 
      procedural protections were not available to the parties; that the 
      suggestion that the tenant has no right to request to see the file in 
      this proceeding except by a FOIL request is at variance with State 
      Administrative Procedure Act ["SAPA"] Section 302(2) and all notions of 
      due process; that his request to see the file did not go "to no 
      particular department at the DHCR," but rather to the MBR Unit at Gertz 
      Plaza, the office specifically seeking his comments; and that the whole 
      matter should have been concluded with the Commissioner's order of 
      November 2, 1990 granting the tenant's appeal and rejecting that of the 
      owner.

      Because of the tenant's contentions in his Petition for Administrative 
      Review about not being given an opportunity to review the files, he was 
      sent a notice on March 4, 1993, giving him 30 days to review the files 
      and make a further submission on the basis of his inspection of the 
      files.  He availed himself of that opportunity and viewed the files on 
      April 8, 1993, but has made no further submissions to date.

      The Commissioner is of the opinion that the tenant's petition should be 
      denied.  



      It was proper to reopen the Administrator's initial determination.  The 
      tenant incorrectly contends that, pursuant to Section 2529.9 of the Rent 
      Stabilization Code, the time for a remand from the Deputy Commissioner 
      expired when his Article 78 proceeding was commenced in December, 1991.  
      That section of the Code does not limit the time period in which a 
      proceeding may be reopened.  Under the terms of the section, the 
      Division may not reopen a proceeding if there is a pending court case 
      challenging that proceeding without leave of the court.  However, if 
      there is no pending court proceeding, the Division may reopen an 
      administrative proceeding upon a finding of illegality, irregularity in 
      a vital matter, or fraud.  In this matter, the court granted the 
      Division's request for a remand to the agency for further proceedings.  
      There no longer being a pending court proceeding, the reopening was thus 
      in compliance with the Rent Stabilization Code and with the court's 
      decision.  Reopening the proceeding was the just thing to do under the 
      circumstances of this case.






          GL410109RT


      As indicated in the Commissioner's September 18, 1992 remand order, the 
      tenant, who is now an attorney, failed to inform the Division of the 
      prior CAB rent overcharge determination when he filed his 1984 rent 
      overcharge complaint.  He omitted this information despite the explicit 
      question in the complaint form asking for a listing of "any other 
      Conciliation and Appeals Board proceedings concerning your apartment of 
      which you have knowledge...."  As found in the Commissioner's September 
      18, 1992 order, the tenant's subsequent denial of knowledge of the prior 
      CAB proceeding which was commenced by him and of the order issued 
      therein, given the evidence of record (including his own detailed letter 
      from that prior CAB proceeding), lacks credibility.  The CAB order was 
      addressed to the tenant at the subject apartment.  Division records 
      include the CAB log book in which entries were made regarding the 
      issuance and mailing of orders in which there is an entry for the CAB 
      order in question.  The issuance of the order appears to have been 
      proper, as shown by the log book and by the owner's subsequent 
      adjustment of the rent to the amount stated in the order.  Moreover, the 
      tenant's 1984 complaint listed the adjusted rent rather than the rent 
      reserved in his lease as the rent he was paying during that lease 
      period.  

      The tenant's credibility was also put in doubt in the November 15, 1991 
      Commissioner's order in Docket No. CC410055RT:  

                It is absolutely clear that the tenant who now 
                conveniently denies any knowledge of the contents 
                or submissions from prior proceedings initiated by 
                him fully participated in those proceedings and not 
                having judicially followed up on their 'closings' 
                was satisfied with the outcomes.  [Emphasis added] 

      In addition, as noted in the Commissioner's September 18, 1992 remand 
      order:
                In response to a notice to Mr. Meer, dated June 18, 
                1987, he stated the following in answer to Question 
                9 of the rent overcharge complaint:

                     "Rental records show that rent jumped by 
                     illegal amount (from $389.21 to $500.00) 
                     between October 1973 and October 1974. 
                     Consequently all charges since have been 
                     overcharges.  Basis are prints-outs of rent 
                     history."

                That information is identical to the information 
                contained in Mr. Meer's letter of October 23, 1978 
                to the CAB.  There is no indication in the record 
                that the information came from any source other 
                than the prior CAB proceeding.

      The tenant's failure to inform the agency of the prior CAB proceeding 












          GL410109RT

      was a serious omission.  That information went to the heart of this 
      proceeding and was critical to a fair and just determination.  Without 
      this information, the owner would become subject to the Division's 
      default procedure for having failed to submit a full rental history and 
      would be liable for an overcharge award in excess of $10,000.  With this 
      information it is patently clear that the tenant has not been 
      overcharged except for a $0.29 per month overcharge for a period during 
      his second lease, prior to the landlord's $0.29 per month adjustment in 
      1979 after issuance of the CAB opinion.

      The tenant contends that his leaving of an item blank on his complaint 
      was not an irregularity in a vital matter, and that even if it were the 
      case that he should have filled it in, "the appropriate and simple 
      procedure would obviously have been to return the application as 
      incomplete in 1984."  Not only does this contention attempt to shift 
      attention from the fact that a tenant who is affirming the contents of 
      a complaint has the responsbility to assure its accuracy, but it ignores 
      the fact that the absence of such information does not indicate to the 
      agency that the complaint is incomplete but rather that there was no 
      prior proceeding. 


      The case cited by the tenant in support of his contention that the 
      reopening was improper, 54/55 Sixth Realty Corp. (Silverstein) v. 
      Levanthal, 51 A.D.2d 714, 380 N.Y.S.2d 662 (1st Dept., 1976), aff'd., 42 
      N.Y.2d 935, 397 N.Y.S.2d 998 (1977), involves very different 
      circumstances than the case at bar and is inapposite.  In that case the 
      Court felt that there would be a clearly inequitable result if the rent 
      agency were allowed to reopen and reverse a decontrol order on the basis 
      of facts relating to a recently discovered order issued decades earlier 
      and involving different parties.  The Court concluded that an 
      unsuspecting party would be unfairly prejudiced by facts which had been 
      ignored for decades.  In the instant proceeding, the tenant is not an 
      unsuspecting party who would be adversely affected by a newly discovered 
      decades old order involving different parties, but the same party who 
      commenced and participated in the prior proceeding, was directly and 
      personally affected by the prior order, and then failed to inform the 
      agency of its existence when he instigated the instant proceeding 
      despite its direct bearing on the proceeding.

      The tenant, who is seeking an unjustifiable windfall resulting at least 
      in part from his improper silence, cannot be said to be prejudiced by 
      the reopening.  His failure to inform the agency of his own prior CAB 
      proceeding, as well as the Division's determining the tenant's 
      subsequent rent overcharge complaint without having given effect to the 
      prior CAB order, warranted the reopening of that determination for de 
      novo consideration on the ground that there was possible fraud and an 
      irregularity in a vital matter.

      The 1979 CAB Opinion No. 10,821 (Docket No. 25917G) determined, based on 
      a complete rental history, that the rent of $525.00 per month in the 
      complainant's lease from October 1, 1977 to September 30, 1979 was 






          GL410109RT

      lawful, since the owner would have been permitted to charge up to 
      $583.19, and that the lawful rent was $603.46 per month in the lease 
      from October 1, 1979 to September 30, 1982, with the tenant's rent of 
      $603.75 thus representing an overcharge of $0.29 per month.  The 
      Commissioner finds that the CAB determination is conclusive as to the 
      lawful rent during the term of the tenant's October 1, 1979 to September 
      30, 1982 lease; and the tenant having participated in the proceeding and 
      there having been no Article 78 proceeding challenging the 
      determination, it was properly given res judicata effect by the 
      Administrator.  Contrary to the tenant's contention, CAB proceedings, 
      which were equivalent in nature to proceedings before the Division, are 
      entitled to be given res judicata effect.  See, Schur Management v. 
      DHCR, __ A.D.2d __, 594 N.Y.S.2d 1 (1st Dept. 1993), in which the Court 
      found that the appellant was precluded from relitigating the issue of 
      the lawful rent of the apartment where it had been established by a 
      prior Rent Commissioner's determination.  A prior determination by the 
      CAB, the Division's predecessor agency, is entitled to the same effect 
      as a prior determination by the Division's Rent Commissioner.  

      Moreover, it was proper for the Rent Administrator, in the reopened de 
      novo proceeding, to give res judicata effect to the CAB order once it 
      was in his possession, regardless of when or whether the landlord raised 
      the defense of res judicata.

      Since the CAB order is conclusive as to the lawful rent as of the date 
      of that order, the owner was not required to submit a rental history 
      prior to that date in this proceeding.  The rental history since that 
      date is in the record.  As the Administrator correctly found, only 
      lawful increases have been taken above the 1979-82 lease rent, after the 
      $0.29 adjustment directed by the CAB order.  Thus, the Rent 
      Administrator correctly found that there was no overcharge from October 
      1, 1982 through February 28, 1989.

      The Commissioner has considered the other contentions raised by the 
      tenant and found them to be without merit.

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

      ORDERED, that the tenant's petition be, and the same hereby is, denied 
      and that the Rent Administrator's November 18, 1992 order be, and the 
      same hereby is, affirmed.



      ISSUED:



                                                                     
                                         JOSEPH A. D'AGOSTA
                                         Deputy Commissioner
                                          






    

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