ADM. REVIEW DOCKET NO. AI 410204 RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.
AI 410204 RO
: D.R.O. DOCKET NO.
L 001928 - RV
JOAN McALLISTER,
PETITIONER :
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ORDER AND OPINION DENYING ADMINISTRATIVE APPEAL
On September 30, 1986, the above-named petitioner-owner filed
an Administrative Appeal against an order issued on September 23,
1986 by the District Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
71 Charles Street, New York, New York, Apartment No. 3F.
The Administrative Appeal is being determined pursuant to the
provisions of 9 NYCRR 2522.5 and 9 NYCRR 2523.5.
The issue herein is whether the District Rent Administrator
properly determined the tenant's complaint of owner's failure to
renew lease.
The District Rent Administrator's order, appealed herein,
determined that the subject apartment is subject to the Rent
Stabilization Law and directed the owner to offer the tenant a
renewal lease.
It was noted in the order that the Division has previously
ruled that where on May 31, 1968, a multiple dwelling contained
six or more units, the owner's subsequent conversion of the
building to a five unit dwelling does not operate to remove the
subject building from the Rent Stabilization Law; and that the
actual number of units as listed on the Certificate of Occupancy
on the base date should be controlling on the issue of whether the
subject building is within the purview of the Rent Stabilization
Law.
On appeal, the petitioner-owner alleges, in substance, that
the subject building is not subject to rent stabilization; and
ADM. REVIEW DOCKET NO. AI 410204 RO
that the parties are involved in litigation on the identical
issue.
On October 27, 1986, the tenant responded to the owner's
administrative appeal by submitting a copy of the February 28,
1986 order of Judge Joseph B. Goldman dismissing the holdover
petition brought by the owner against the tenant under Index No.
L & T 477941/85 wherein the court determined that the evidence
established that the subject buildng was a multiple dwelling of
six units on the effective base date controlling under the Rent
Stabilization Law; that the owner's renovation in 1976 whereby two
apartments were combined into one duplex unit for the owner's own
use did not operate to remove the building from the effective
provisions of the Rent Stabilization Law; and that the tenant,who
took occupancy in 1978, two years after the alteration of the
premises, is entitled to a renewal lease.
The owner replied on November 6, 1986 by stating that Judge
Goldman's order of dismissal had been appealed and the matter was
currently under consideration in the Appellate Term.
After a careful consideration of the entire evidence of
record the Commissioner is of the opinion that the administrative
appeal should be denied.
A review of the record indicates that the District
Rent Administrator properly determined that the subject apartment
was subject to rent stabilization and that the tenant was entitled
to a renewal of her lease. The Division and the Courts have
consistently held that absent a showing of "substantial
rehabilitation" of the building, and no such claim has been made
in the instant proceeding, a reduction in the number of units
alone is not sufficient to exempt from rent stabilization coverage
a building which contained the requisite number of units on the
applicable base date. The reduction in the number of units does
not affect coverage of the remaining units and does not deprive
the remaining tenants of stabilized status. In addition, a person
who rents after such a reduction to fewer than six units is
subject to stabilization (Fleur v. Croy 520 N.Y.S. 2d 1010 [N.Y.
City Civ. Ct., 1987]).
The Commissioner notes that, as cited in Fleur v. Croy, the
owner's appeal against the order of Judge Goldman was not
successful (McAllister v. Winters, N.Y.L.J. March 13, 1987, p.
12, col. 1 [App. Term, 1st Dept.].
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this administrative appeal be, and the same
hereby is, denied and that the order of the District Rent
Administrator be, and the same hereby is, affirmed.
ISSUED:
ADM. REVIEW DOCKET NO. AI 410204 RO
ELLIOT SANDER
Deputy Commissioner
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