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
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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
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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
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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
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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.
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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
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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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