Posted by Hawk on January 11, 1999 at 06:10:32:
In Reply to: Re: pay rent into escrow after filing complaints with DHCR? posted by TenantNet on January 10, 1999 at 16:16:57:
The law allows tenants three options: either filing a rent overcharge complaint with DHCR, starting a lawsuit in Supreme Court, or, most commonly, counterclaiming (suing the other party who sued you in the same lawsuit) in a non-payment proceeding in Housing Court. A tenant would elect to go to Supreme Court if all rent is paid up to date.
My personal opinion, but Supreme Court is clearly a much better place to sue alleging a rent overcharge for several reasons: Supreme Court usually has better judges than in Housing Court; Supreme Court rules are much better from a tenant's perspective than in Housing Court (most significantly discovery is available in Supreme Court, but only available with permission in Housing Court, and hard to get); if a tenant is counterclaiming in Housing Court it is a defensive posture, rather than an offensive posture if suing in Supreme Court.
The option of filing a rent overcharge complant with DHCR seems to be the worst option of all three, but the one tenants seem to select the most. (Perhaps because of their unawareness of the pitfalls of filing a complaint with DHCR.) First, it takes a very long time to have DHCR decide a rent overcharge complaint, and in the event the tenant wins the landlord can appeal (called a PAR) without having to put up the overcharge award amount. (In contrast, in a Supreme Court case, if the landlord wanted to appeal, it would have to put up the judgment amount or a bond (the equivalent of the full money amount). Having to put up the money is certainly a disincentive for a landlord to appeal. Also, the PAR appeal will likely take a few more years. Second, DHCR is very pro landlord. This is now a given and to discuss that point any further is foolish.
Filing a complaint with DHCR is only a good option considering that it can be done without the assistance of a lawyer. This, however, is penny wise and pound foolish. Most landlords use sophisticated lawyers to respond to rent overcharge complaints and DHCR does not give unrepresented tenants any slack. So, filing a complaint with DHCR is a cheap way to go, but it will take far longer than the other two options (and you must pay your rent while DHCR ponders your complaint for years), will likely put the tenant up against sophisticated lawyers who know how to deal with DHCR very well, and in the long run likely result in a losing decision for the tenant.
The latest at DHCR is that many tenants who win rent overcharge complaints at the first level (the Rent Administrator level) invariably find out that they lose at the second level (the PAR level). It is not hard to comprehend that DHCR put its army of pro-landlord people in the PAR units, so that they can overrule all Rent Administrator decisions that are favorable to tenants. At that point the tenant can bring an Article 78 proceeding in Supreme Court (which is different than the rent overcharge lawsuit that can be started by a tenant in Supreme Court -- discussed above as one of the three options) and THEN likely seek the help of a lawyer for the first time. By then it is probably too late to salvage the case, because the Supreme Court judge can only review the evidence and arguments put before DHCR by the parties (this is called the record). Having not had the help of a lawyer before DHCR, it is likley that the record will be inadequately developed -- from the tenant's perspective. Thus, more time and money might be spent fighting a case that well might have had merit, but that the landlords sophisticated lawyers and DHCR cleverly turned into a loser.
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