Supreme Court Can't Decide Tenant's Fair Market Rent Appeal

(Decision submitted by James R. Marino of the Manhattan law firm of Kucker Kraus & Bruh, attorneys for the landlord.) Facts: Tenant sued landlord in Supreme Court for a rent overcharge. Landlord argued that since tenant was the first rent-stabilized tenant of the apartment, the complaint was actually a fair market rent appeal---which the DHCR, and not the court, must decide. Tenant claimed that landlord's daughter was the first rent-stabilized tenant. Landlord had filed documents with the DHCR, which listed the apartment as rent-stabilized during the daughter's tenancy. Before the landlord's daughter moved in, landlord had listed the apartment with the DHCR as rent-controlled. Court: The case must be decided by the DHCR. Technically, landlord's listing of the apartment as rent-stabilized during the daughter's tenancy made her the first rent-stabilized tenant. But rent-stabilized status hadn't really begun yet because landlord didn't file the initial apartment registration with the DHCR until tenant brought the overcharge complaint. So, tenant is considered the first rent-stabilized tenant. A fair market rent determination must be made because the apartment's conversion from rent-controlled to rent-stabilized status is an integral part of tenant's rent overcharge complaint. Only the DHCR can set the fair market rent.

Bitan v. Marder: Index No. 403380/93 (Sup. Ct. NY; Arber, J) (5/11/94) [7-page document]