Preview
FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024
THELAWOFFICE OFCHRISTOPHERJ. ALVARADO,P. C.
350 EAST52NDSTREET,STE 1A
NEWYORK.NEWYORK10022
TEL: (212) 605-0929
FAX: (646) 619-4871
(Not for Legal Service)
Christopher J. Alvarado, Esq.
chris@calvaradolaw.com
January 18, 2024
Overnight Federal Express
NewYork of
State Division
Housing and Community Renewal
Office of Rent Administration
Overcharge Processing Unit
Gertz Plaza
6th
92-31 Union Hall St., PlOOr
Jamaica, NewYork 11433
Re: Petition for Administrative Review
Docket No. : KS-210007-R
Premises : 1159 Dean Street, Brooklyn 11216
Occupant : Martusewicz
Apartment : 1A
To WhomIt May Concern:
Please find enclosed the Petition for Administrative Review ("PAR") seeking the reversal
of Order issued by the Housing and Community Renewal ("DHCR) on December 14, 2023
the
(the "Order"). Please also find enclosed the signed authorization of my client Ms. Caitlin
Martusewiz allowing me to file this PARon her behalf.
Sincerely:
Christopher J. Alvarado.
Cc:
Caitlin Martusewicz (via email only)
FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024
January 17, 2024
New York State Department of Housing
and Community Renewal (DHCR)
Office of Rent Administration
Re: Rent Overcharge PAR Docket No: KS 210007 R
1159 Dean Street, Apt 1A
Brooklyn, NY 11216
Dear Sirs or Madams:
I am the tenant of record for Apartment 1A located at 1159 Dean Street, Brooklyn, New
York 11216. The undersigned, authorize(s) Mr. Christopher J. Alvarado of the Law Office of
Christopher J. Alvarado, P.C as my representative in the filing of this petition for administrative
review against the Order issued under Docket Number KS 210007 R. Thank you for your
anticipated cooperation in that regard.
Sincerely,
Caitlin Martusewicz
FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024
State of New York Gertz Plaza Docket Number:
Division of Housing and Community Renewal 92-31 Union Hall Street (For office use only)
Office of Rent Administration Jamaica, New York 11433
Web Site: www.hcr.ny.gov
PETITION FOR ADMINISTRATIVE REVIEW (PAR)
This form is a petition to the Division of Housing and Community Renewal (DHCR) appealing an Order of a Rent
Administrator. It must be completed, attached to a copy of the Order being appealed in accordance with the Instructions on
Side Two of this form, and filed with DHCR.
Section A. Identification of the Order being appealed:
1. Case Docket No.: KS 210007 R 2. Date Order Issued: 12/14/2023
3. DHCR Issuing Office: ✔ Gertz Plaza Rent Office Westchester Rent Office
Section B. Identification of premises involved in the Order:
4. Number and Street: 1159 Dean Street Apt. No.: 1A or Building-Wide
Garden Apartment Complex Multi-building Complex
City, State, Zip Code: Brooklyn, NY 11216
Section C. Identification of Petitioner: Identification of Petitioner's Attorney/Authorized Representative:
5. Caitlin Martusewicz 6. Christopher J. Alvarado
Petitioner's Name Name of Attorney/Authorized Representative
(585)-905-7783 (212) 605-0929
Daytime Telephone Number Daytime Telephone Number
Petitioner's Mailing address
1159 Dean Street 1A 350 E. 52nd Street, STE. 1A
Number and Street Apt. No. Mailing Address (No. and Street)
Brooklyn, NY 11216 New York, NY 10022
City, State, Zip Code City, State, Zip Code
7. Petitioner is the (check one): Owner ✔
Tenant Sub-tenant Authorized owner representative*
Authorized tenant representative* Other
(* A signed authorization must be attached) Managing Agent for Owner
Section D. Statement of Petitioner:
8. I, the undersigned, object to the Order identified in Section A above, and request that it be (check one):
✔ Reversed (cancelled completely) Modified (changed in part)
9. I believe the error of fact and/or law in the Order being appealed is (attach additional sheet(s) if necessary):
See Annexed Petition
Item 10. The names and addresses of all other parties affected by the Order being appealed are as follows: Note: If you are the tenant (or subtenant) or
the tenant's representative, provide in the space below only the owner's (and the prime tenant's, if relevant) name and address. If more than one owner is
involved or there is a new owner, provide this information for each owner. If you are the owner or the owner's representative, provide in the space below
the names and addresses of all tenants and other parties (e.g., prior owner, subtenant) affected by the Order. Attach additional sheet(s) if necessary. Be
sure to attach a complete copy of the Order being appealed.
1159 Dean LLC 12 Spencer St #4 Brooklyn, NY 11205
Name Address Name Address
John Swinson 1159 Dean Street Apt 1A Brooklyn, NY 11216
Name Address Name Address
Name Address Name Address
Section E. Affirmation or Verification (You must complete either the verification or the affirmation. See instructions on the
reverse side of this form before completing this section):
Affirmation (Does not require notarization):
I have read the foregoing petition and any attachments thereto and I affirm that the same is true to my own knowledge except as to those matters which I
have stated to be based on information and belief, and as to those matters, I believe it to be true. False statements made in this petition may subject me to
the penalties provided by law.
Caitlin Martusewicz 01 / 17 / 2024
Name of Petitioner (please print) Signature of Petitioner Date
- __________________________________________
Verification (Requires notarization):
State of New York, County of ) S.S.:
(Name of Petitioner) , being duly sworn, deposes and says: That he (she) is the petitioner in the
foregoing petition ; that he/she has read the foregoing petition, and any attachments thereto, and knows the contents thereof; that the same is true to his
(her) own knowledge except as to the matters therein stated to be alleged on information and belief and that as to those matters he (she) believes it to be
true.
Sworn to before me this day of , 20 . Signature of Petitioner (sign in presence of notary)
RAR-2 (9/00) -1- Notary Public or Commissioner of Deeds
FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024
NEWYORKSTATEDIVISION OF HOUSINGAND
COMMUNITY
RENEWAL
___________________________________________________________-----_______Ç
In the Matter of the Application of Docket No.: KS 210007 R
CAl TLIN MARTUSEWICZ, PETITION FOR
ADMINSTRATIVE REVIEW
Petitioner,
-against-
NEWYORKSTATEDIVISION OFHOUSINGAND
COMMUNITY
RENEWAL,
Respondent.
______________________________________________________________-----------Ç
1. Christopher Alvarado an attorney at law duly admitted to practice before the Courts
of the State of NewYork affirms under penalty of perjury as follows: I am the principal of the
Law Office of Christopher J. Alvarado, P.C., attorney for the Petitioner Caitlin Martusewicz, and
as such I am fully familiar with the facts and circumstances set forth below, except as to those
stated upon information and belief and to those matters, I believe them to be true. The basis of
my belief is my own personal knowledge and that provided by Petitioner and that maintained
within the firm's file.
2. The Order, issued December 14, 2023 (the "Order"), should be reversed in its
entirety in that the Division of Housing and Community Renewal ("DHCR") improperly deviated
from not only the methodology used in the PAROrder issued March 22, 2022 (the "March 2022
PAROrder") but the mandates of the Housing Stability and Tenant Protection act
("
the
HSPTA"). A copy of the Order is The Order hereto attached as (Exhibit "A"). The Order has
granted not one, but two vacancy increases to prior lease periods that were offered by the Owner
as fair-market renewal leases. Copies of these renewal leases are attached hereto as (Exhibit
PAR Page I of 14
FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024
"B"). Furthermore, DHCRgranted these vacancy increases at pre-HSTPA vacancy rates rather
than the post-HSTPA guideline increases in clear contravention of both the HSTPAand the rent
regulations as of November 8, 2023. The HSPTAspecifically to this proceeding eliminated
vacancy lease increases. The Order also found that the legal regulated rent and collectible rent
from June 1, 2017 is $4000 per month which ignores the fact the Owner has blatantly ignored the
March 2022 PAROrder. The landlord has neither refunded my client for the already decided rent
overcharge nor did they attempt to register the subject apartment until late March 2023 only after
an ongoing nonpayment proceeding that they brought against my client necessitated it. This non-
payment proceeding is seeking to collect sums from improper retroactive rent increases.
3. Additionally, despite being found to be rent stabilized, the Owner has refused to
offer tenants a proper lease since the initial order finding overcharge in 2016, hence there not
"proper"
being a lease on record from 2017 to present. A copy of an email from the Owner
stating such is attached hereto as (Exhibit "C"). The behavior of the Owner has been on clear
display since the initial review of the subject apartment starting in 2014 until now and
demonstrates a pattern of willful ignorance towards the proper procedure and methods under the
rent stabilization law. In additional example, the Landlord's representatives have been advised
that Petitioner is represented by Counsel yet continue to send harassing emails with claims like
"now that you've lost the DHCRcase please let me know if you are willing to work on a
balance"
settlement for the despite the fact that Petitioner is within the time frame to file for a
petition for administrative review of said DHCRcase there is still a pending housing court non-
payment proceeding in which the amount of rent is a central issue. A copy of the Owners most
recent email is attached hereto as (Exhibit "D").
4. As such, DHCRshould eliminate the vacancy increases granted to the Owner and
PAR Page 2 of 14
FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024
calculate the legal regulated rent and collectible rent with applicable guideline increases
accordingly. Further consideration should be given to the Owner's willful and blatant disregard
of the DHCRMarch 2022 PAROrder, which placed the obligation of calculating the legal
regulated rent from 2014 to present on the Owner, and treble damages should be awarded in the
calculation of Overcharge from 2014 to present rather than 2016 to present.
HISTORYOF THE PROCEEDINGS
A. Prior Decided DHCRProceeding
5. The tenants including the Petitioner have had a long history of trying to get the
Owner to comply with the mandates of the rent stabilization code.
6. On or about May 29, 2014, Danielle MKane f/k/a Wanglien on behalf of all the
tenants of the subject premises, including my client, filed and commenced an overcharge
proceeding with DHCRwhich was assigned Docket No. CQ210254R. Subsequently, DHCR
advised the Respondent-Landlord that the overcharge proceeding was being treated as a bona-
fide fraud claim and requested the Landlord produce: a) an explanation of how the rent was
increased from $662.00 per month in 1999 to $1350.00 per month in 2002, including, copies of
leases, riders and ledgers to substantiate the increase in rent; b) proof that the Landlord did not
receive rent for the subject premises for the years 2003-2012; and c) proof of IAI's completed
tenants'
prior to the occupancy.
7. DHCRissued an Order dated August 19, 2016, wherein DHCRfound that the
Respondent-Landlord had overcharged the tenants of the subject premises in the amount of
$74,8881.52, along with interest in the amount of $22,759.24 and holding excess security deposit
in the amount of $2,868.1 1, for a total overcharge in the sum of $100,508.87. Additionally, the
PAR Page 3 of 14
FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024
Order set the base date as May 29, 2010 with the established legally regulated rent of $1,131,89
per month.
8. Subsequently, both the tenants and the Owner filed Petitions for Administrative
Review which eventually resulted in the PAROrder issued on March 22. 2022 Docket No:
JU210007RP (the "March 2022 PAROrder"). A Copy of which is attached hereto along with a
summarized history of the DHCRreview process for the initial overcharge complaint spanning
eight years from initial complaint to final decision as (Exhibits "E" and "F" respectively).
B. Current DHCRProceeding
9. On or about July 6, 2022, the Petitioner commenced the instant proceeding by
filing an overcharge complaint with DHCRin direct response to an eviction notice received from
the landlord on this day, and the proceeding was assigned Docket No. KS 210007 R.
10. Petitioner commenced the instant proceeding after several months had elapsed
without the Owner complying with the March 2022 PAROrder which required the Owner to do
several things, including paying an overcharge award and to calculate the legal regulated rent
established in the PAROrder as of May 31, 2014 and amend the rent registrations accordingly.
None of which were done at the time as of the filing of the instant proceeding.
1 1. On August 3, 2022 the Owner formally commenced a non-payment
proceeding against the remaining tenants of 1 159 Dean Street Apt No: 1A. Brooklyn, NY
11216. The filing claimed the apartment had been deregulated based upon High-Rent Vacancy
Deregulation. when the apartment had already been found to be stabilized and two (2) of the
three (3) roommates never vacated the premises. The non-payment proceeding is still currently
being litigated in Kings County Housing Court
12. Nearly a year after the commencement of Owner's non-payment proceeding
PAR Page 4 of 14
FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024
Petitioner received the first Requested for Additional information/Evidence ("RFAI") dated
July 21, 2023 from DHCRwhich included a copy of the Owner's September 30, 2022 Reply to
the overcharge complaint. Petitioner timely submitted her Reply to the first RFAI on or about
August 9, 2023 . A Copy of the first RFAI and Petitioner's Response are hereto attached as
(Exhibit"G").
13. Petitioner received a second RFAI dated September 14, 2023 along with the
Owner's Reply dated September 11, 2023. Bizarrely Owner's September 1
ld'
Reply still argues
that the subject apartment is exempt from rent stabilization though the Owner "voluntarily
stabilized,"
registered the apartment and agreed to treat the apartment as rent the Owner filed
amended registrations on or about March 30, 2023. In reality the Owner registered the
apartment to avoid having its non-payment proceeding dismissed. Petitioner timely submitted
her Reply to the first RFAI on or about October3. 2023 . A Copy of the second RFAI and
Petitioner's Response are hereto attached as (Exhibit "H").
14. On or about November 14, 2023 Petitioner received a third RFAl from DHCR
along with the Owner's Reply dated September 13, 2023. For all intents and purposes Owner's
Reply of September 13. 2023 is identical to Owner's September 11, 2023 Reply. On the side of
caution, Petitioner resubmitted her October 3, 2023 RFAI Response. A Copy of the third RFAI
is attached hereto as (Exhibit "I").
15. Finally, on or about December 14, 2023, Petitioner received the Order Denying
Complaint of Rent Overcharge issued December 14, 2023 (the "Order"). The Order found that
there was no overcharge and that the legally regulated rent is $4,000 per month.
THE ORDERIS ABRITRARYANDCAPRICIOUS
16. The Order issued December 14, 2023 is arbitrary and capricious, without
PAR Page5 of 14
FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024
rational basis and is contrary to law and should be reversed in its entirety.
A decision of an administrative agency which neither adheres to its own prior precedent nor
indicates its reason for reaching a different result on essentially the same facts is arbitrary and
capricious. see: Matter of Charles A. Field Delivery Serv. [Roberts), 66 NY 2d 516, (1985);
Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY
2d 86, 93, (2001); Knight v Amelkin. 68 NY2d 975 (1986); Matter of Aliperti v Trotta. 827
NYS2d 274 (2006). Where an agency departs from an established precedent, it must provide an
explanation for the departure so that a reviewing court can "determine whether the agency has
changed its prior interpretation of the law for valid reasons. or has simply overlooked or ignored
decision"
its prior see: (Matter of Charles A. Field Delivery Serv. [Roberts], supra.
17. To understand and analyze the Order the prior PAROrder issued on March 22,
2022 Docket No: JU210007RP must be reviewed. The March 2022 PAROrder found and
placed a continuing obligation of the Owner to calculate future rent increases based on the
legal regulated rent as of May 31, 2014 which was established in the order as $2.996.46.
However it should be noted pursuant to the March 2022 PAROrder. the last reliable
registered rent was from 1999 and was equal to $662.47. with the base date set at May 29,
2010, with a rent of $1.775.00 which was established by using the average rent of comparable
stabilized apartments, as no reliable rent could be establish on the base date.
18. The current Order found that the base date for the proceeding is July 6. 2016
and that the legal regulated rent and collectable rent are both $4000 per month. The finding of
the amount of rent completely ignores the previous 2022 Order on the issue which established
how to treat increases, the facts of this proceeding, the rent stabilization code and law, as well
Sheets."
as DHCR's own guidance set forth on their "Fact The leases in this proceeding where
Form"
specifically labeled "Renewal Lease to treat these leases as new tenancies would
PAR Page 6 of 14
FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024
essentially vitiate the well held rule that stabilized renewal leases must be offered on the same
terms as the expiring DHCRalso should be collaterally estopped from differing from the
methodology used in the 2022 Order. See: Jeffreys v. Griffin, 1 N.Y.3d 34 (2003). The 2022
Order applied a single vacancy increase at the start of the lease term in 2012 and at assigned a
guideline increase to the 2013 lease even though the order also acknowledged that a new
tenant, my client, had been added to the lease and replaced another lease holder. As such, the
departure shown in the current Order, with the application of vacancy increases to both the
2014 and 2015 lease terms while two roommates of the previous year lease continued their
tenancy can only be seen as arbitrary and capricious and must be reversed.
19. The Order found the legal regulated rent to be $4000 per month and found the
collectible to be $4000 per month from June 1, 2022. These finding are simply erroneous. This
is for several reasons. First, the Owner is not entitled to vacancy increases per the HSPTA,
reason two being the failure of the Owner to treat the Apartment as stabilized. and reason three
being the failure of the Owner to timely file amended rent registrations. all of which preclude
the collection of increased rent until the Owner is in legal compliance (see: Rent Stabilization
Code §2528.4(a). Finally, the Respondent has paid rent or U/O consistently as either ordered
by DCHRof the Kings County Housing Court.
20. This proceeding should be analyzed under the guidance of the Housing Stability
& Tenant Protection Act ("HSTPA") which had an Effective date of June 14. 2019. This
proceeding was commenced on or about July 6, 2022 and therefore there is no issue under
Matter of Regina Metropolitan Co., LLC v. NYS Div. of Housing & Comm. Renewal. The
HSPTAeliminated the statutory vacancy rate and does not permit rent guidelines boards to
establish a separate vacancy rate, see also DHCRFact Sheet 26. In other words, the Owner
would at most be entitled to a renewal increase at the percentage set forth in the relevant RGB
PAR Page 7 of 14
FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024
Apartment/Loft Order. Furthermore, Changes to the rent regulation case law effective
November 8, 2023 further clarify that the Rent Guidelines Board one- or two-year lease
guideline adjustments shall be applicable to both vacancy and renewal leases. No more than
one guideline adjustment can be added to the rent in a calendar year for a vacancy lease.
21. In the Order DHCRgave the owner of not one vacancy increase but two, in clear
contravention of the HSPTA. These vacancy increases must be disregarded and the guideline
increase for a lease renewal used instead.
22. The Owner was not in legal compliance with the rent stabilization law, as such
the Owner is only entitled to collect the higher rent once in compliance. Rent Stabilization
Code §2528.4(a) provides, in relevant part:
"The failure to properly and timely comply. on or after the base date, with the rent
registration requirements of this Part shall, until such time as such registration is completed,
bar an owner from applying for or collecting any rent in excess of the base date rent, plus any
lawful adjustments allowable prior to the failure to register. Such a bar includes but is not
limited to rent adjustments pursuant to section 2522.8 of this Title. The late filing of a
registration shall result in the elimination, prospectively, of such penalty ......... (9 NYCRR§
2528.4[al [emphasis added]). This means the Owner can seek the increased rent going forward
but is not permitted to collect increases they missed due to their own mis-registration or non-
registration of the apartment.
23. The statutes provide that if a building owner fails to file a proper and timely rent
registration with DHCR, the penalty is a rent freeze at the amount of the legal regulated rent of
the last registration that was in fact filed with DHCR. Subsequently, once the late registration is
filed, and if the increases in the legal regulated rent were lawful as determined by DHCR, then
the rent freeze is lifted going forward as of the date of the filing and an owner can charge a
PAR Page 8 of 14
FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024
higher rent amount. See: Erik James LLC v Bruna, 70 Misc. 3d 1223[A] (Civ. Ct, Bronx County
2021). It is respectfully submitted that since the rental amount is still under administrative review
the Owner cannot seek to collect the higher rent. It should be noted that at no time in an order did
DHCRadvise the tenants that they would potentially be liable for retroactive increases.
24. In this proceeding, assuming arguendo that the Petitioner properly registered the
apartment with DHCRon March 30, 2023, from 2014 to present, per RSC§2528.4(a), the Owner
was barred from applying for or collecting any rent in excess of the base date rent, plus any
lawful adjustments allowable prior to the failure to register. The base date as set in the DHCR
Order of March 2022 was set as May 29, 2010 with a base date rent of base date rent of
$1.775.00 which was established by using the average rent of comparable stabilized
apartments, as no reliable rent could be establish on the base date. as of May 31, 2014 the rent
was found to be $2996.46. As such it must be found that the collectible rent until such time as
the administrative review is complete is at most $2,996.46 per month.
25. The Petitioner calculates the legal regulated rent as follows. See the below chart
also attached as (Exhibit "J").
-Space Intentionally Left Blank-
PAR Page 9 of 14
FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM
Preview
FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024 THELAWOFFICE OFCHRISTOPHERJ. ALVARADO,P. C. 350 EAST52NDSTREET,STE 1A NEWYORK.NEWYORK10022 TEL: (212) 605-0929 FAX: (646) 619-4871 (Not for Legal Service) Christopher J. Alvarado, Esq. chris@calvaradolaw.com January 18, 2024 Overnight Federal Express NewYork of State Division Housing and Community Renewal Office of Rent Administration Overcharge Processing Unit Gertz Plaza 6th 92-31 Union Hall St., PlOOr Jamaica, NewYork 11433 Re: Petition for Administrative Review Docket No. : KS-210007-R Premises : 1159 Dean Street, Brooklyn 11216 Occupant : Martusewicz Apartment : 1A To WhomIt May Concern: Please find enclosed the Petition for Administrative Review ("PAR") seeking the reversal of Order issued by the Housing and Community Renewal ("DHCR) on December 14, 2023 the (the "Order"). Please also find enclosed the signed authorization of my client Ms. Caitlin Martusewiz allowing me to file this PARon her behalf. Sincerely: Christopher J. Alvarado. Cc: Caitlin Martusewicz (via email only) FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024 January 17, 2024 New York State Department of Housing and Community Renewal (DHCR) Office of Rent Administration Re: Rent Overcharge PAR Docket No: KS 210007 R 1159 Dean Street, Apt 1A Brooklyn, NY 11216 Dear Sirs or Madams: I am the tenant of record for Apartment 1A located at 1159 Dean Street, Brooklyn, New York 11216. The undersigned, authorize(s) Mr. Christopher J. Alvarado of the Law Office of Christopher J. Alvarado, P.C as my representative in the filing of this petition for administrative review against the Order issued under Docket Number KS 210007 R. Thank you for your anticipated cooperation in that regard. Sincerely, Caitlin Martusewicz FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024 State of New York Gertz Plaza Docket Number: Division of Housing and Community Renewal 92-31 Union Hall Street (For office use only) Office of Rent Administration Jamaica, New York 11433 Web Site: www.hcr.ny.gov PETITION FOR ADMINISTRATIVE REVIEW (PAR) This form is a petition to the Division of Housing and Community Renewal (DHCR) appealing an Order of a Rent Administrator. It must be completed, attached to a copy of the Order being appealed in accordance with the Instructions on Side Two of this form, and filed with DHCR. Section A. Identification of the Order being appealed: 1. Case Docket No.: KS 210007 R 2. Date Order Issued: 12/14/2023 3. DHCR Issuing Office: ✔ Gertz Plaza Rent Office Westchester Rent Office Section B. Identification of premises involved in the Order: 4. Number and Street: 1159 Dean Street Apt. No.: 1A or Building-Wide Garden Apartment Complex Multi-building Complex City, State, Zip Code: Brooklyn, NY 11216 Section C. Identification of Petitioner: Identification of Petitioner's Attorney/Authorized Representative: 5. Caitlin Martusewicz 6. Christopher J. Alvarado Petitioner's Name Name of Attorney/Authorized Representative (585)-905-7783 (212) 605-0929 Daytime Telephone Number Daytime Telephone Number Petitioner's Mailing address 1159 Dean Street 1A 350 E. 52nd Street, STE. 1A Number and Street Apt. No. Mailing Address (No. and Street) Brooklyn, NY 11216 New York, NY 10022 City, State, Zip Code City, State, Zip Code 7. Petitioner is the (check one): Owner ✔ Tenant Sub-tenant Authorized owner representative* Authorized tenant representative* Other (* A signed authorization must be attached) Managing Agent for Owner Section D. Statement of Petitioner: 8. I, the undersigned, object to the Order identified in Section A above, and request that it be (check one): ✔ Reversed (cancelled completely) Modified (changed in part) 9. I believe the error of fact and/or law in the Order being appealed is (attach additional sheet(s) if necessary): See Annexed Petition Item 10. The names and addresses of all other parties affected by the Order being appealed are as follows: Note: If you are the tenant (or subtenant) or the tenant's representative, provide in the space below only the owner's (and the prime tenant's, if relevant) name and address. If more than one owner is involved or there is a new owner, provide this information for each owner. If you are the owner or the owner's representative, provide in the space below the names and addresses of all tenants and other parties (e.g., prior owner, subtenant) affected by the Order. Attach additional sheet(s) if necessary. Be sure to attach a complete copy of the Order being appealed. 1159 Dean LLC 12 Spencer St #4 Brooklyn, NY 11205 Name Address Name Address John Swinson 1159 Dean Street Apt 1A Brooklyn, NY 11216 Name Address Name Address Name Address Name Address Section E. Affirmation or Verification (You must complete either the verification or the affirmation. See instructions on the reverse side of this form before completing this section): Affirmation (Does not require notarization): I have read the foregoing petition and any attachments thereto and I affirm that the same is true to my own knowledge except as to those matters which I have stated to be based on information and belief, and as to those matters, I believe it to be true. False statements made in this petition may subject me to the penalties provided by law. Caitlin Martusewicz 01 / 17 / 2024 Name of Petitioner (please print) Signature of Petitioner Date - __________________________________________ Verification (Requires notarization): State of New York, County of ) S.S.: (Name of Petitioner) , being duly sworn, deposes and says: That he (she) is the petitioner in the foregoing petition ; that he/she has read the foregoing petition, and any attachments thereto, and knows the contents thereof; that the same is true to his (her) own knowledge except as to the matters therein stated to be alleged on information and belief and that as to those matters he (she) believes it to be true. Sworn to before me this day of , 20 . Signature of Petitioner (sign in presence of notary) RAR-2 (9/00) -1- Notary Public or Commissioner of Deeds FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024 NEWYORKSTATEDIVISION OF HOUSINGAND COMMUNITY RENEWAL ___________________________________________________________-----_______Ç In the Matter of the Application of Docket No.: KS 210007 R CAl TLIN MARTUSEWICZ, PETITION FOR ADMINSTRATIVE REVIEW Petitioner, -against- NEWYORKSTATEDIVISION OFHOUSINGAND COMMUNITY RENEWAL, Respondent. ______________________________________________________________-----------Ç 1. Christopher Alvarado an attorney at law duly admitted to practice before the Courts of the State of NewYork affirms under penalty of perjury as follows: I am the principal of the Law Office of Christopher J. Alvarado, P.C., attorney for the Petitioner Caitlin Martusewicz, and as such I am fully familiar with the facts and circumstances set forth below, except as to those stated upon information and belief and to those matters, I believe them to be true. The basis of my belief is my own personal knowledge and that provided by Petitioner and that maintained within the firm's file. 2. The Order, issued December 14, 2023 (the "Order"), should be reversed in its entirety in that the Division of Housing and Community Renewal ("DHCR") improperly deviated from not only the methodology used in the PAROrder issued March 22, 2022 (the "March 2022 PAROrder") but the mandates of the Housing Stability and Tenant Protection act (" the HSPTA"). A copy of the Order is The Order hereto attached as (Exhibit "A"). The Order has granted not one, but two vacancy increases to prior lease periods that were offered by the Owner as fair-market renewal leases. Copies of these renewal leases are attached hereto as (Exhibit PAR Page I of 14 FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024 "B"). Furthermore, DHCRgranted these vacancy increases at pre-HSTPA vacancy rates rather than the post-HSTPA guideline increases in clear contravention of both the HSTPAand the rent regulations as of November 8, 2023. The HSPTAspecifically to this proceeding eliminated vacancy lease increases. The Order also found that the legal regulated rent and collectible rent from June 1, 2017 is $4000 per month which ignores the fact the Owner has blatantly ignored the March 2022 PAROrder. The landlord has neither refunded my client for the already decided rent overcharge nor did they attempt to register the subject apartment until late March 2023 only after an ongoing nonpayment proceeding that they brought against my client necessitated it. This non- payment proceeding is seeking to collect sums from improper retroactive rent increases. 3. Additionally, despite being found to be rent stabilized, the Owner has refused to offer tenants a proper lease since the initial order finding overcharge in 2016, hence there not "proper" being a lease on record from 2017 to present. A copy of an email from the Owner stating such is attached hereto as (Exhibit "C"). The behavior of the Owner has been on clear display since the initial review of the subject apartment starting in 2014 until now and demonstrates a pattern of willful ignorance towards the proper procedure and methods under the rent stabilization law. In additional example, the Landlord's representatives have been advised that Petitioner is represented by Counsel yet continue to send harassing emails with claims like "now that you've lost the DHCRcase please let me know if you are willing to work on a balance" settlement for the despite the fact that Petitioner is within the time frame to file for a petition for administrative review of said DHCRcase there is still a pending housing court non- payment proceeding in which the amount of rent is a central issue. A copy of the Owners most recent email is attached hereto as (Exhibit "D"). 4. As such, DHCRshould eliminate the vacancy increases granted to the Owner and PAR Page 2 of 14 FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024 calculate the legal regulated rent and collectible rent with applicable guideline increases accordingly. Further consideration should be given to the Owner's willful and blatant disregard of the DHCRMarch 2022 PAROrder, which placed the obligation of calculating the legal regulated rent from 2014 to present on the Owner, and treble damages should be awarded in the calculation of Overcharge from 2014 to present rather than 2016 to present. HISTORYOF THE PROCEEDINGS A. Prior Decided DHCRProceeding 5. The tenants including the Petitioner have had a long history of trying to get the Owner to comply with the mandates of the rent stabilization code. 6. On or about May 29, 2014, Danielle MKane f/k/a Wanglien on behalf of all the tenants of the subject premises, including my client, filed and commenced an overcharge proceeding with DHCRwhich was assigned Docket No. CQ210254R. Subsequently, DHCR advised the Respondent-Landlord that the overcharge proceeding was being treated as a bona- fide fraud claim and requested the Landlord produce: a) an explanation of how the rent was increased from $662.00 per month in 1999 to $1350.00 per month in 2002, including, copies of leases, riders and ledgers to substantiate the increase in rent; b) proof that the Landlord did not receive rent for the subject premises for the years 2003-2012; and c) proof of IAI's completed tenants' prior to the occupancy. 7. DHCRissued an Order dated August 19, 2016, wherein DHCRfound that the Respondent-Landlord had overcharged the tenants of the subject premises in the amount of $74,8881.52, along with interest in the amount of $22,759.24 and holding excess security deposit in the amount of $2,868.1 1, for a total overcharge in the sum of $100,508.87. Additionally, the PAR Page 3 of 14 FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024 Order set the base date as May 29, 2010 with the established legally regulated rent of $1,131,89 per month. 8. Subsequently, both the tenants and the Owner filed Petitions for Administrative Review which eventually resulted in the PAROrder issued on March 22. 2022 Docket No: JU210007RP (the "March 2022 PAROrder"). A Copy of which is attached hereto along with a summarized history of the DHCRreview process for the initial overcharge complaint spanning eight years from initial complaint to final decision as (Exhibits "E" and "F" respectively). B. Current DHCRProceeding 9. On or about July 6, 2022, the Petitioner commenced the instant proceeding by filing an overcharge complaint with DHCRin direct response to an eviction notice received from the landlord on this day, and the proceeding was assigned Docket No. KS 210007 R. 10. Petitioner commenced the instant proceeding after several months had elapsed without the Owner complying with the March 2022 PAROrder which required the Owner to do several things, including paying an overcharge award and to calculate the legal regulated rent established in the PAROrder as of May 31, 2014 and amend the rent registrations accordingly. None of which were done at the time as of the filing of the instant proceeding. 1 1. On August 3, 2022 the Owner formally commenced a non-payment proceeding against the remaining tenants of 1 159 Dean Street Apt No: 1A. Brooklyn, NY 11216. The filing claimed the apartment had been deregulated based upon High-Rent Vacancy Deregulation. when the apartment had already been found to be stabilized and two (2) of the three (3) roommates never vacated the premises. The non-payment proceeding is still currently being litigated in Kings County Housing Court 12. Nearly a year after the commencement of Owner's non-payment proceeding PAR Page 4 of 14 FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024 Petitioner received the first Requested for Additional information/Evidence ("RFAI") dated July 21, 2023 from DHCRwhich included a copy of the Owner's September 30, 2022 Reply to the overcharge complaint. Petitioner timely submitted her Reply to the first RFAI on or about August 9, 2023 . A Copy of the first RFAI and Petitioner's Response are hereto attached as (Exhibit"G"). 13. Petitioner received a second RFAI dated September 14, 2023 along with the Owner's Reply dated September 11, 2023. Bizarrely Owner's September 1 ld' Reply still argues that the subject apartment is exempt from rent stabilization though the Owner "voluntarily stabilized," registered the apartment and agreed to treat the apartment as rent the Owner filed amended registrations on or about March 30, 2023. In reality the Owner registered the apartment to avoid having its non-payment proceeding dismissed. Petitioner timely submitted her Reply to the first RFAI on or about October3. 2023 . A Copy of the second RFAI and Petitioner's Response are hereto attached as (Exhibit "H"). 14. On or about November 14, 2023 Petitioner received a third RFAl from DHCR along with the Owner's Reply dated September 13, 2023. For all intents and purposes Owner's Reply of September 13. 2023 is identical to Owner's September 11, 2023 Reply. On the side of caution, Petitioner resubmitted her October 3, 2023 RFAI Response. A Copy of the third RFAI is attached hereto as (Exhibit "I"). 15. Finally, on or about December 14, 2023, Petitioner received the Order Denying Complaint of Rent Overcharge issued December 14, 2023 (the "Order"). The Order found that there was no overcharge and that the legally regulated rent is $4,000 per month. THE ORDERIS ABRITRARYANDCAPRICIOUS 16. The Order issued December 14, 2023 is arbitrary and capricious, without PAR Page5 of 14 FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024 rational basis and is contrary to law and should be reversed in its entirety. A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious. see: Matter of Charles A. Field Delivery Serv. [Roberts), 66 NY 2d 516, (1985); Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of Huntington, 97 NY 2d 86, 93, (2001); Knight v Amelkin. 68 NY2d 975 (1986); Matter of Aliperti v Trotta. 827 NYS2d 274 (2006). Where an agency departs from an established precedent, it must provide an explanation for the departure so that a reviewing court can "determine whether the agency has changed its prior interpretation of the law for valid reasons. or has simply overlooked or ignored decision" its prior see: (Matter of Charles A. Field Delivery Serv. [Roberts], supra. 17. To understand and analyze the Order the prior PAROrder issued on March 22, 2022 Docket No: JU210007RP must be reviewed. The March 2022 PAROrder found and placed a continuing obligation of the Owner to calculate future rent increases based on the legal regulated rent as of May 31, 2014 which was established in the order as $2.996.46. However it should be noted pursuant to the March 2022 PAROrder. the last reliable registered rent was from 1999 and was equal to $662.47. with the base date set at May 29, 2010, with a rent of $1.775.00 which was established by using the average rent of comparable stabilized apartments, as no reliable rent could be establish on the base date. 18. The current Order found that the base date for the proceeding is July 6. 2016 and that the legal regulated rent and collectable rent are both $4000 per month. The finding of the amount of rent completely ignores the previous 2022 Order on the issue which established how to treat increases, the facts of this proceeding, the rent stabilization code and law, as well Sheets." as DHCR's own guidance set forth on their "Fact The leases in this proceeding where Form" specifically labeled "Renewal Lease to treat these leases as new tenancies would PAR Page 6 of 14 FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024 essentially vitiate the well held rule that stabilized renewal leases must be offered on the same terms as the expiring DHCRalso should be collaterally estopped from differing from the methodology used in the 2022 Order. See: Jeffreys v. Griffin, 1 N.Y.3d 34 (2003). The 2022 Order applied a single vacancy increase at the start of the lease term in 2012 and at assigned a guideline increase to the 2013 lease even though the order also acknowledged that a new tenant, my client, had been added to the lease and replaced another lease holder. As such, the departure shown in the current Order, with the application of vacancy increases to both the 2014 and 2015 lease terms while two roommates of the previous year lease continued their tenancy can only be seen as arbitrary and capricious and must be reversed. 19. The Order found the legal regulated rent to be $4000 per month and found the collectible to be $4000 per month from June 1, 2022. These finding are simply erroneous. This is for several reasons. First, the Owner is not entitled to vacancy increases per the HSPTA, reason two being the failure of the Owner to treat the Apartment as stabilized. and reason three being the failure of the Owner to timely file amended rent registrations. all of which preclude the collection of increased rent until the Owner is in legal compliance (see: Rent Stabilization Code §2528.4(a). Finally, the Respondent has paid rent or U/O consistently as either ordered by DCHRof the Kings County Housing Court. 20. This proceeding should be analyzed under the guidance of the Housing Stability & Tenant Protection Act ("HSTPA") which had an Effective date of June 14. 2019. This proceeding was commenced on or about July 6, 2022 and therefore there is no issue under Matter of Regina Metropolitan Co., LLC v. NYS Div. of Housing & Comm. Renewal. The HSPTAeliminated the statutory vacancy rate and does not permit rent guidelines boards to establish a separate vacancy rate, see also DHCRFact Sheet 26. In other words, the Owner would at most be entitled to a renewal increase at the percentage set forth in the relevant RGB PAR Page 7 of 14 FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024 Apartment/Loft Order. Furthermore, Changes to the rent regulation case law effective November 8, 2023 further clarify that the Rent Guidelines Board one- or two-year lease guideline adjustments shall be applicable to both vacancy and renewal leases. No more than one guideline adjustment can be added to the rent in a calendar year for a vacancy lease. 21. In the Order DHCRgave the owner of not one vacancy increase but two, in clear contravention of the HSPTA. These vacancy increases must be disregarded and the guideline increase for a lease renewal used instead. 22. The Owner was not in legal compliance with the rent stabilization law, as such the Owner is only entitled to collect the higher rent once in compliance. Rent Stabilization Code §2528.4(a) provides, in relevant part: "The failure to properly and timely comply. on or after the base date, with the rent registration requirements of this Part shall, until such time as such registration is completed, bar an owner from applying for or collecting any rent in excess of the base date rent, plus any lawful adjustments allowable prior to the failure to register. Such a bar includes but is not limited to rent adjustments pursuant to section 2522.8 of this Title. The late filing of a registration shall result in the elimination, prospectively, of such penalty ......... (9 NYCRR§ 2528.4[al [emphasis added]). This means the Owner can seek the increased rent going forward but is not permitted to collect increases they missed due to their own mis-registration or non- registration of the apartment. 23. The statutes provide that if a building owner fails to file a proper and timely rent registration with DHCR, the penalty is a rent freeze at the amount of the legal regulated rent of the last registration that was in fact filed with DHCR. Subsequently, once the late registration is filed, and if the increases in the legal regulated rent were lawful as determined by DHCR, then the rent freeze is lifted going forward as of the date of the filing and an owner can charge a PAR Page 8 of 14 FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM INDEX NO. 515857/2024 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 06/07/2024 higher rent amount. See: Erik James LLC v Bruna, 70 Misc. 3d 1223[A] (Civ. Ct, Bronx County 2021). It is respectfully submitted that since the rental amount is still under administrative review the Owner cannot seek to collect the higher rent. It should be noted that at no time in an order did DHCRadvise the tenants that they would potentially be liable for retroactive increases. 24. In this proceeding, assuming arguendo that the Petitioner properly registered the apartment with DHCRon March 30, 2023, from 2014 to present, per RSC§2528.4(a), the Owner was barred from applying for or collecting any rent in excess of the base date rent, plus any lawful adjustments allowable prior to the failure to register. The base date as set in the DHCR Order of March 2022 was set as May 29, 2010 with a base date rent of base date rent of $1.775.00 which was established by using the average rent of comparable stabilized apartments, as no reliable rent could be establish on the base date. as of May 31, 2014 the rent was found to be $2996.46. As such it must be found that the collectible rent until such time as the administrative review is complete is at most $2,996.46 per month. 25. The Petitioner calculates the legal regulated rent as follows. See the below chart also attached as (Exhibit "J"). -Space Intentionally Left Blank- PAR Page 9 of 14 FILED: KINGS COUNTY CLERK 06/07/2024 03:59 PM