DHCR Should Consider Affidavit Submitted on Appeal

(Decision submitted by Jack Kuttner of the Manhattan law firm of Kucker Kraus & Bruh, LLP, attorneys for the landlord.) Tenant complained of a rent overcharge. The DRA ruled for tenant and ordered landlord to refund over $22,000 for a willful rent overcharge. Landlord appealed, claiming he didn't understand English well and hadn't understood DHCR's notices. Landlord later supplemented his PAR with a sworn statement from prior landlord, who stated that tenant's apartment had been vacant prior to March 31, 1980, and remained vacant until tenant took occupancy. The DHCR ruled against landlord and refused to consider the new evidence submitted with the PAR. Landlord appealed and won. The court found that the DHCR's actions in this case were unreasonable. Given the three-year delay by the DHCR in sending tenant's complaint to landlord and the clear implication of the affidavit submitted by landlord with his PAR, the DHCR should have used its discretion to accept landlord's proof. The case was sent back to the DHCR for consideration of whether tenant's apartment was vacant during the time period in question.

DiMaggio v. DHCR: Index No. 23695/96 (1/14/97) (Sup. Ct. NY; Barasch, J) [6-page document]