DOC. NOS.: ARL 10651-Q, ARL 11161-Q
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 NOS.: ARL 10651-Q
KRONSEL REALTY CO., : ARL 11161-Q
PETITIONER : DRO DOCKET NOS.:
------------------------------------X QS 003952-S
QS 003954-S
TENANTS: JOHN and MARY MOORER
CRAIG PAYTON
ORDER AND OPINION REMANDING PROCEEDINGS TO THE RENT ADMINISTRATOR
These petitions are being consolidated as they involve common issues
of fact and law.
On May 23 and May 16, 1986, the above named petitioner-owner filed
Petitions for Administrative Review against orders issued on April 21,
and April 15, 1986, respectively, by the Rent Administrator, 92-31
Union Hall Street, Jamaica, New York, concerning housing
accommodations known as Apartment 2, 1914 Brookhaven Avenue and
Apartment 1, 1916 Brookhaven Avenue, Far Rockaway, New York wherein
the Rent Administrator determined that there had been diminutions of
services and ordered rent reductions. The April 16th petition was
rejected on June 6, 1986 under docket number ARL 10347-Q. Petition
number ARL 11161-Q, filed June 20, 1986, constitutes the timely
refiling of that Petition.
The Commissioner has reviewed all the evidence in the record and has
carefully considered that portion of the record relevant to the issues
raised by the administrative appeal.
The tenants commenced these proceedings on September 17, 1985 and
October 22, 1985 by filing service complaints.
The tenants requested rent reductions based upon the alleged decreases
in services.
Based on inspections, in Orders Numbered ZQS 003952-S and ZQS 003954-
S, the Rent Administrator determined that there were numerous services
that were not being properly provided and ordered rent reductions.
DOC. NOS.: ARL 10651-Q, ARL 11161-Q
In these petitions, the owner contends that the Rent Administrator's
Orders are incorrect and should be modified because the buildings are
two family houses and therefore not subject to Rent Stabilization.
The tenants did not answer these petitions, although given the
opportunity to do so.
The Commissioner is of the opinion that these proceedings should be
remanded to the Rent Administrator.
In order number ARL 11747-Q, involving the other tenant (J. Frazier)
in the building at 1916 Brookhaven Avenue, the Commissioner remanded
that proceeding to determine whether the building was not subject to
stabilization because it admittedly has a certificate of occupancy as
a two family house, or whether it was subject to stabilization as part
of a horizontal multiple dwelling. (There were conflicting prior
Administrator's orders on this issue). The remand order noted
specifically that on remand:
"A proper determination of this issue, on the
merits, would require consideration of such
factors as whether there is common or separate
access to the various structures; whether there
is a common or separate heating or hot water
plant and other facilities, such as utility
meters, post office boxes etc.; and whether there
are common physical structures. Consideration
should also be given to the history of the
premises, including whether the structures were
erected a the same time; whether or not they have
always had common ownership; whether there is a
single deed and/or mortgage; and whether or not
they could have been operated and/or sold
separately."
Nevertheless, the Administrator on remand, in order number ZBA-110009-
RP, issued May 14, 1987, found the premises not to be subject to the
Rent Stabilization Law based solely on the fact that the building at
1916 Brookhaven was a two family dwelling, a fact which was explicitly
stated on the Commissioner's remand order. In short, the
Administrator failed to resolve the issue according to the detailed
directive of the remand order.
The Commissioner notes that Section 2520.11(d) of the Rent
Stabilization Code explicitly states that the fact that Certificates
DOC. NOS.: ARL 10651-Q, ARL 11161-Q
of Occupancy showing that a structure or structures are one or two
family dwellings does not necessarily exclude them from coverage under
Stabilization if they are otherwise part of a stabilized complex
containing six or more units with such common facilities as a sewer
line, water main or heating plant and was operated as a unit
under common ownership on the date the building or complex first
became subject to Stabilization.
Because there are conflicting Administrator's orders on the issue of
whether these dwellings are part of a horizontal multiple dwelling
within the meaning of the Code, and because order ZBA 110009-RP failed
to resolve the issue according to the directive of the Commissioner in
ARL 11747-Q, the Commissioner hereby remands these proceedings to the
Rent Administrator for a final determination, with notice to all
potentially affected tenants that the order on remand may be binding
on them, and giving them the opportunity to submit evidence on the
issue of jurisdiction. On remand, the Administrator should resolve
the issue of jurisdiction after an inspection, following the above-
stated directives of the Commissioner in ARL 11747-Q and the standards
set forth in Salvati v. Eimicke, 537 N.Y.S.2d 16 (Ct.App. 1988);
motion for reargument or reconsideration denied, 540 N.Y.S. 2d 1006
(Ct. App. 1989).
THEREFORE, in accordance with the Rent Stabilization Law and Code, it
is
ORDERED, that these petitions be, and the same hereby are, granted to
the extent of remanding these proceedings to the Rent Administrator
for further processing in accordance with this order and opinion. The
automatic stay of so much of the Rent Administrator's orders as
directed repairs and a retroactive rent abatement is hereby continued
until new orders are issued upon remand. However, the Administrator's
determinations as to a prospective rent abatement is not stayed and
shall remain in effect until the Administrator issues new orders upon
remand.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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