Tenant Can Withdraw Pending Overcharge Claim Without Notice to Landlord

Rent-stabilized tenant complained to the DHCR of rent overcharge. The DRA later terminated and dismissed the proceeding based on a withdrawal letter submitted by tenant's attorney. Tenant's attorney advised the DRA in July 2019 that, in December 2018, landlord's attorney had commenced an eviction proceeding against tenant based on nonpayment of rent. The attorney further stated that, since the nonpayment case implicated tenant's legal regulated rent, tenant was electing to pursue the question of a rent overcharge as part of a counterclaim in the nonpayment case.

Landlord appealed and lost. Landlord argued that it wasn't put on notice of tenant's withdrawal of the DHCR complaint, that the New York Civil Practice Law and Rules (CPLR) didn't allow withdrawal of a claim once a response had been filed, that the DHCR complaint wasn't withdrawn with prejudice, and that tenant was forum-shopping. The DHCR pointed out that there was no requirement under the Rent Stabilization Law or Code that the DHCR put a landlord on notice when a tenant withdraws a rent overcharge complaint. There also was no provision in the RSL or RSC similar to the CPLR provision landlord pointed to. The housing court has concurrent jurisdiction with the DHCR over rent overcharge claims, so there was nothing improper in tenant's choice.

919 Prospect Ave LLC: DHCR Adm. Rev. Docket No. HT610007RO (11/25/19) [2-pg. doc.]