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Re: So the lawyer told me...

Posted by TenantNet on December 01, 2001 at 15:11:25:

In Reply to: So the lawyer told me... posted by Michael on December 01, 2001 at 14:31:31:

The lawyer is technically correct -- however this should be clarified. You can't go to court and start an overcharge proceeding. You must withhold rent and when you are taken to court by your landlord, the overcharge and lack of registration would be part of your defense -- that is what people mean by going to court on an overcharge. The courts have concurrent jurisdiction with DHCR.

But that's a wrinkle about the next part. The other way (which we normally don't recommend) is to file with DHCR. Normally that takes forever. But technically they are supposed to decide the case within 90 days -- then you have a window of time to file an appeal. But that's after you get to the PAR stage. You first have to get DHCR to decide at the District Rent Office (DRO) stage. Then the losing party can file a PAR (Petition for Adminsitrative Review). Then they have 90 days. You then have 2 months to file an Article 78 in SUpreme Court. But that can cost you a heck of a lot more in lawyers fees than other methods. What the lawyer is also talking about is a form of an Article 78 proceeding called a Mandamus - orfering the DHCR to make a decision.

Also, once you file with DHCR, the Housing Court will claim you chose your forum for the overcharge and defer to DHCR.

Not that the lawyer is totally incorrect, but suggest you get a second opinion.

: I've always read here on this forum that it's best to go directly to housing court instead of filing a complaint with the DHCR for an apartment that we believe we are being overcharged greatly for. Basically, it's no longer rent-stabilized because the landlord...says so. DHCR report shows no change in rent-stabilization of unit, and landlord has not made any registrations on unit in over 2 years. I believe the apartment was vacant for one year.

: Here's the new rub...we spoke with a lawyer who said that we can't go to housing court for an overcharge. That we would have to withhold rent first, then the landlord would sue, and then we could possibly bring up the overcharge as reason for withholding. What he DID say to do was to file with DHCR, which he agreed takes forever to make decisions. But he said, that technically, they have 90 days to make a decision. When the 90 days are up and they haven't made a decision (99% probability of that), you file what he called an "Article 17", with the State Supreme court, which "orders" the DHCR to render a decision within the next 90 days. So 180 days, and you're done.

: Anyone got any advice on this plan? Does this sound right? wrong? I've never heard anyone mention this path before.

: Thanks.

: Michael


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