AK 410007 RT
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.: AK 410007 RT
L. CARL DEMLER,
D.R.O. ORDER NO.: CDR 23,556
D.R.O DOCKET NO.: TC 066545 G
OTHER PARTY: BING AND BING
MANAGEMENT INC.
PETITIONER
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ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
On November 3, 1986, the above named petitioner-tenant filed a
Petition for Administrative Review against an order issued on
September 30, 1986 by the Rent Administrator 10 Columbus Circle,
New York, New York, concerning housing accommodations known as
Apartment Number G.F.W. at 970 Park Avenue, New York, New York,
wherein the Rent Administrator dismissed the tenant's overcharge
complaint.
The Commissioner notes that this proceeding was initiated prior
to April 1, 1984. Sections 2526.1(a)(4) and 2521.1(d) of the
Rent Stabilization Code (effective May 1, 1987) governing rent
overcharge and fair market rent proceedings provide that
determination of these matters be based upon the law or code
provisions in effect on March 31, 1984. Therefore, unless
otherwise indicated, reference to Sections of the Rent
Stabilization Code (Code) contained herein are to the Code in
effect on April 30, 1987.
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant
to the issues raised by the administrative appeal.
This proceeding was originally commenced on August 16, 1982 by
the filing of a complaint of rent overcharge with the New York
City Conciliation and Appeals Board (CAB, the agency formerly
charged with enforcing the Rent Stabilization Law) by the tenant.
The owner filed an answer to the complaint.
The Administrator dismissed the complaint, noting the submission
of the tenant's leases going back to the vacancy lease term which
commenced on December 15, 1974; on the grounds that the tenant
was using the apartment exclusively for commercial or
professional purposes and, therefore, the overcharge complaint is
outside of the Division's jurisdiction.
AK 410007 RT
In the Petition, the tenant states that he has used the apartment
exclusively as his residence and maintains a business elsewhere.
The owners answer opposing the Petition asks that the order of
the Rent Administrator be affirmed, and that the Petition be
denied.
The Commissioner is of the opinion that this matter should be
remanded to the Administrator for further, appropriate
processing.
The Commissioner notes that the tenant's vacancy lease is
entitled "Standard Form of Apartment Lease" and states " 36
Tenant shall not use or occupy the apartment...For any purpose
other than as a semiprofessional unit for facility planning."
That language is repeated in the December 10, 1980 renewal
agreement and is not modified or abrogated in any document in the
record. The Commissioner construes the term "semi-professional"
as devoting a mixed, residential and professional, use. The
Commissioner finds no evidence in the record that rebuts this
construction, especially in view of the fact that the tenant's
initial lease was entitled "Standard Form of Apartment Lease".
The Commissioner therefore finds that the Administrator's
findings that the subject apartment was rented for commercial use
only and that, therefore, the Division does not have jurisdiction
to entertain this overcharge complaint, are not supported by the
record herein.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is, granted
to the extent of remanding the proceeding to the Rent
Administrator for processing in accordance with this Order and
Opinion.
ISSUED:
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ELLIOT SANDER
Deputy Commissioner
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