Opinion
570256/03.
Decided May 12, 2004.
Petitioner appeals from an order of the Civil Court, New York County, dated June 13, 2002 (Jean T. Schneider, J.) granting tenant's motion for summary judgment dismissing the petition.
Order dated June 13, 2002 (Jean T. Schneider, J.) affirmed, without costs.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM J. DAVIS, HON. MARTIN SCHOENFELD, Justices.
On October 20, 1999, DHCR issued an order granting tenant an overcharge award of $16,069.20. Thereupon, tenant began crediting the award against his $408.70 monthly rent pursuant to the terms of the order. In February 2001, petitioner was appointed RPAPL article 7-A administrator of the building and, in February 2002, commenced this nonpayment summary proceeding for unpaid rent extending back to her appointment. Civil Court granted tenant's motion for summary judgment dismissing the petition, determining that section 2526.1(e) of the Rent Stabilization Code entitles tenant to credit an overcharge award against the "present owner" and, pursuant to section 2520.6(i) of the Code, the administrator is deemed an "owner" since she is a "person or entity receiving or entitled to receive rent from the use or occupation of any housing accommodation".
We affirm. It is clear that the administrator stands in the shoes of the owner for the purpose of, among other things, collecting and receiving rents (see RPAPL § 778). The Appellate Division has recognized the liability of an article 7-A administrator in rent overcharge situations, noting that "tenants who have been subject to rent overcharges . . . should not be forced to pay or be denied a refund of illegal rents paid in order to subsidize the repairs required to be made by the article 7-A administrator" (Matter of Schactman v. DHCR, 143 AD2d 53, 56). While Schactman did not consider the precise issue whether a tenant could continue to offset a pre-existing overcharge award upon the appointment of an administrator, it should be read as embracing such a result under the present statutory scheme. The DHCR order (which has not been modified) authorized the tenant to, inter alia, "credit the established rent each month until the overcharge is fully credited", without limiting that remedy in the event of new or substituted ownership or control. By the time of the administrator's appointment, tenant had been crediting his rent for more than one year, thereby waiving his option to enforce the DHCR order as a judgment of the Supreme Court (see Rent Stabilization Code, § 2526.1[e]; East 7th Street Development Corp. v. Miller, 138 Misc 2d 345). He may not now be foreclosed from deducting the overcharge "from the rent due to the present owner" (Code, § 2526.1[e]).
Petitioner's reliance upon DHCR Policy Statement 93-3 is misplaced, as that opinion is addressed to an overcharge order issued subsequent to the appointment of an article 7-A administrator.
This constitutes the decision and order of the court.