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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.HG410176RT
: DRO DOCKET NO.HF410012RP
SAMUEL MORELL CL410003AD
PETITIONER : OWNER: Eighty-First Assoc.
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On July 29, 1993, the above-named petitioner-tenant filed a
Petition for Administrative Review against an order issued on July
9, 1993, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
519 East 81st Street, New York, Apartment No. D wherein the
Administrator declined to determine a rent overcharge but determined
that the issue had been resolved in a previously issued order.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2529 of the Rent Stabilization Code.
The issue herein is whether the Rent Administrator's order was
warranted.
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant to
the issues raised by the administrative appeal.
This proceeding was commenced on December 22, 1988 when the
tenant requested a determination of the legality of the room count
in the subject apartment and a further determination of the legality
of the rent being charged. In an order issued on May 8, 1990, the
Administrator denied the tenant's request based upon the DHCR's lack
of jurisdiction. Subsequently, the tenant filed a Petition for
Administrative Review (hereinafter PAR) against the order. In an
order issued on May 27, l993, under Docket Number EF410006RT, the
Commissioner determined that the Administrator had erred in denying
jurisdiction and ordered that the proceeding be remanded for
consideration of the tenant's overcharge complaint. On remand, the
Administrator was directed to determine the merits of the tenant's
complaint of rent overcharge.
On July 9,1993, the Administrator issued the order, here under
review, pursuant to the above referenced Order of Remand,
affirming an order issued on March 24, 1987 under docket L3114632R
which had established the lawful stabilization rent for the subject
apartment and found a rent overcharge of $31.57 through January
31,1989.
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In his appeal, the tenant contends that the Administrator
erroneously determined that the issues raised by the tenant had been
resolved when the issues had not even been considered in the
previous order. Moreover, the issues raised could not have been
considered at that time because the information required to make the
allegation was not known until after the order had been issued.
Specifically,the tenant contends that due to an asbestos condition
in the DHCR building in 1987, he was unable to procure records which
would have provided the basis of an appeal of the order on which the
Administrator relies. Furthermore, he had no knowledge at that time
that the owner had submitted a fraudulent rent history. Since the
issue of an illegal conversion and the collection of illegal
inflated rents were not previously determined, the tenant contends
that the proceeding should be remanded for a determination of the
rent.
In answer to the appeal, the owner contends that the tenant,
who did not file a PAR against the order which established the rent,
is barred by the doctrines of res judicata and collateral estoppel
from relitigating the rent overcharge complaint. The owner further
contends that the tenant's contention that an erroneous room count
caused an illegal rent to be collected should be rejected since the
tenant's initial rent was not contingent upon the number of rooms
but was set at a fair market level. Many of the documents cited by
the tenant are public records which have always been available to
the tenant. The tenant does not claim that he made any requests to
the DHCR to review agency records before or after he initiated the
overcharge complaint in 1984 or before his time to appeal the 1987
order had expired. Finally, the owner contends that the tenant can
no longer challenge his initial rent because the 90 day time period
in which to contest the initial rent has long since expired.
The Commissioner is of the opinion that this petition should be
denied.
The doctrines of res judicata and collateral estoppel are
designed to provide finality to litigation. Under these doctrines,
a party is precluded from relitigating issues that were or could
have been determined in a previous proceeding. The lawful
stabilized rent was established under Docket Number L3114632R on
March 24, 1987 in resolution of an overcharge complaint filed by the
tenant in March 1984. The Rent Stabilization Code requires that a
PAR be filed within 35 days of the issuance of the Rent
Administrator's order. Since the time for appealing that order has
long since expired, the rent established therein is final. The DHCR
is bound by its prior determination establishing the rent; the
Administrator was limited by the legal principles of res judicata
and collateral estoppel to affirm the lawful rent. Having failed to
appeal at the appropriate time, the tenant cannot collaterally
attack that determination in this appeal. Moreover, the tenant has
not demonstrated that he attempted to get documents or that his
production of these documents would have changed the Rent
Administrator's determination. An examination of the record reveals
that the tenant was in possession of the Certicate of Occupancy for
the subject building while the earlier proceeding was pending. Nor
has the tenant demonstrated that the rental history provided by the
owner was fraudulent. In addition, the number of rooms in an
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apartment is not relevant to an overcharge proceeding. If the
tenant's contention is that the owner has now reduced the number of
rooms in the subject apartment, his remedy is to file an application
for a rent reduction due to a service decrease. The Commissioner
finds that he is unable to reopen the earlier proceeding and that he
is bound by the rent set therein.
On February 14, 1994, the tenant submitted a supplement to the
PAR which, pursuant to Advisory Opinion 92-1, is not timely filed
and will not be considered herein.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and
the same hereby is denied, and, that the order of the Rent
Administrator be, and the same hereby is, affirmed.
ISSUED
JOSEPH A. D'AGOSTA
Deputy Commissioner
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