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Article 78 remand back to DHCR

NYC Rent Regulation: Rent Control/Rent Stabilized, DHCR Practice/Procedures

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Article 78 remand back to DHCR

Postby bluegrass » Sun May 15, 2022 10:35 pm

Hi. Situation is the following:

+ Filed rent overcharge and failure to renew lease complaints with DHCR
+ Rent Administrator ruled against me; I filed PAR
+ PAR decision also went against me; I filed an Article 78

After some time (and without case getting in front of a judge), DHCR now says they want the case back to review (remand back to the agency)

Question: If DHCR takes the case back, do they allow additional information to be submitted by either party? Is whatever new ruling they make able to appealed? Would appeal be via a PAR or an Article 78?

Trying to figure out where in the process the remanded complaint begins when DHCR takes the case back. Thanks.
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Re: Article 78 remand back to DHCR

Postby TenantNet » Mon May 16, 2022 12:55 am

What was the basis for the denial of your lease complaint? Can you send us the PAR decision, either attach it in a Private Mail, or email to tenant@tenant.net. Also, if you can, the docket number for the A78.

Are you represented by an attorney in the A78?

It's common for DHCR to ask a court to remand a case back to the agency for "further processing." Usually it's when a tenant wins below and the LL attorney raises a stink. DHCR doesn't want to look bad, so they go along with it and pro se tenants are left holding the bag. In my experience, the decision on the remand erases the prior tenant win and rules for the LL, and the logic is horrible.

But I've never seen DHCR ask for a remand where a tenant has lost.

Theoretically DHCR PAR is supposed to be limited by the evidence submitted at the District Rent proceeding, but you can try to put in new evidence, and if you can, explain why you didn't have it before. The agency is inconsistent about this, but usually favors the LL.

If there's a new decision on a remand, it's also considered a PAR (a Commissioner's Order) and can again be appealed via A78.

On the remand, they are supposed to give it a new PAR docket and give both side an opportunity to put in facts or arguments.

Because of all this, we usually recommend tenants not agree to a remand. That would force the agency to ask the court to order a remand, and you can oppose that. Of course your case might be the exception.
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Re: Article 78 remand back to DHCR

Postby bluegrass » Tue May 17, 2022 10:22 pm

Thanks for the reply. Yes, I am represented by counsel for the A78.

LL's counsel hasn't said anything since the A78 was filed (they were not directly named in the filing, either). It also means we haven't heard them try to oppose the remand.

DHCR came up with a convoluted basis for denying the PAR/complaint. Basically saying there is not enough evidence to pierce the 4 year lookback period, even though there are several precedents saying that RS status is not subject to the 4 year limitation - only establishing the legal rent and therefore overcharge calculations are. And the 4 year lookback can be pierced in the case of fraud per Grimm, which I believe I have also proven.
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Re: Article 78 remand back to DHCR

Postby TenantNet » Wed May 18, 2022 5:02 am

Usually it works like this: when a PAR decision is issued, DHCR will include a page that you have right to file a judicial appeal (the A78). Usually it's the losing party that would file the A78 (if they choose, but not always). There are rare occasions where the winning side will file an A78, for example, if they didn't get 100% of what they wanted.

So if you file an A78, it's against the agency, in this case DHCR. The LL is not a party. But it's usually up to the party not filing the A78 to check with DHCR to see if an appeal has been filed - they can do so by calling DHCR Legal Dept. They have 60 days to file the A78, but give them an extra 30 or so for it to show up in the agency database. You can also watch eCourts, SCROLL or NYSCEF (google those).

Then, if they wish, they can seek to intervene. DHCR will usually allow intervention on consent. So it's up to the appellant to decide whether to allow the LL to intervene on consent (a simple one-page stip file with the courts will do this). Or they can deny the LLs request, forcing the LL to make a motion to intervene. In my experience, the courts usually allow this, but it forces the LL to go through the effort, spend the time and money, and some times it might piss-off the judge. So use that power wisely. In my experience, my LL usually denies intervention just to be a jerk.

If the LL hasn't sought intervention, well don't tell them. Why the complication? There no guarantee the LL will return the favor, most likely not. There's a difference between being civil and being stupid :). Now your attorney will know all this. Make sure your attorney checks with you before they take any action. Some lawyers will do things without the client knowing. Remember, they work for you.

We also just became aware of a case that says DHCR has to show the need in order to remand. From a person familiar with this sort of thing:

"...we know that the DHCR tilts in favor of landlords so we can reasonably expect something in their analysis is amiss. And, FYI, DHCR can only self-remand if they first concede specific errors and "irregularity in vital matters,” Porter v. DHCR, A.D. 1st Department, 2008, in their remand petition. Since DHCR is constitutionally incapable of admitting error, tenant’s attorney should be forewarned about Porter’s controlling effect on self-remand, as DHCR in my case conveniently didn’t mention Porter to my then lawyers when they snookered stipulation from them to allow remand."

Just Google "Porter v. DHCR, A.D. 1st Department, 2008," or see: https://casetext.com/case/porter-v-ny
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Re: Article 78 remand back to DHCR

Postby bluegrass » Wed May 18, 2022 10:34 am

Thanks. I was not aware of the Porter case, though I am not sure I understand its implication here. Please confirm that my interpretation is accurate.

I think what it is saying is that in the stipulation to self-remand, DHCR must identify the failures it made in the original decision that it will presumably correct. It also seems like DHCR may elect to self-remand without needing agreement from other parties? For my case, it seems like then that we should push DHCR to identify its faults from the PAR in the stipulation to remand?

That would then provide some protection that they fix the issues and/or indicate what they intend to do? Are there other reasons to request that DHCR detail the errors?

It seems like potentially a good thing that they will remand the case back. If that is the case, do I make it more difficult for them to remand by asking that they put in the stipulation the reasons for taking the case back?
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Re: Article 78 remand back to DHCR

Postby TenantNet » Wed May 18, 2022 12:33 pm

As I read it, it requires DHCR to jump through hoops before it can try to push through a remand. See if your atty can explain it better. Of course, if you're OK with the remand, then it's probably immaterial. However ... you might be able to get DHCR to state on the record which part of the decision they wish to review and possibly change, limiting the change to only part of it. Perhaps there are parts you don't want to change. So you might be able to limit the scope of the remand. You see this in decisions where the court will use language that they address only certain points of an underlying decision.

I don't think DHCR can just self-remand without a) agreement of all parties, or b) a court order stemming from a motion. You really need to discuss this with your attorney.

What you're looking for is to fix the bad decision, not blaming them publicly.
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