ADM. REVIEW DOCKET NO.: BC 410310 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.: BC 410310 RO
DRO DOCKET NO.:
THE DELMONICO HOTEL-OWNER, : ZL 001145-RV
Allyn Ehrlich-Tenant
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On March 23, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
February 23, 1987 by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York concerning the housing accommodations
known as Apartment No. 400, 502 Park Avenue, New York, New York,
wherein the Administrator determined that the tenant was entitled
to the protection of the Rent Stabilization Law and Amended Hotel
Code and directed the owner to register the subject unit.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issue raised by the administrative appeal.
This proceeding was originally commenced on July 31, 1984 by
the filing of a tenant's complaint of owner's failure to renew
lease. The tenant stated he had commenced occupancy of the
subject apartment in June 1976 pursuant to an eight year lease
expiring June 30, 1984 which the owner refused to renew.
A copy of the tenant's complaint was served on the owner.
The owner responded, stating that the space occupied by the
tenant was commercial space and was rented to the tenant for
commercial purposes only, and as such was not subject to Rent
Stabilization.
On January 17, 1986, the owner reiterated its answer and
submitted copies of the tenant's lease and a certificate of
occupancy dated June 1978 which limited the use of the subject
floor to business purposes.
In reply, the tenant stated that he had occupied the subject
apartment on a combined business and residential basis for ten
ADM. REVIEW DOCKET NO.: BC 410310 RO
years with the knowledge and consent of both the former and
present owners; the building manager was a frequent visitor to the
apartment. The tenant challenged the 1978 certificate of
occupancy as stating the owner's desired use but not reflecting
the actual usage. The tenant asserts that at the time he took
occupancy of the subject apartment, the four lower floors were
being used residentially; the certificate of occupancy, which
postdates his occupancy, represents the owner's desire to convert
the four lower floors to commercial usage. The tenant further
stated that the owner had acknowledged the residential usage of
the subject premises in a writing dated April 5, 1983 in which the
owner referred to the premises as "apartment 400". The tenant
submitted a floor plan of the subject apartment which indicates
that the bathroom has a bathtub, an accouterment not usually
found on commercial premises.
To further substantiate his residential usage, the tenant
asserted that the owner had provided maid and linen service on a
continual basis. The tenant submitted copies of income tax forms,
automobile registration, and voter registration card all of which
indicated the premises as his residence.
A check of the Division's records revealed that the subject
building is a residential hotel subject to the Rent Stabilization
Law and the Amended Hotel Code.
A physical inspection to determine whether the usage of the
subject premises was commercial or residential was conducted by a
staff member of the DHCR on May 20, 1986. The inspector reported
that there was evidence of both residential and commercial usage;
there was a combined living room/bedroom; the kitchen was stocked
with food; a closet had clothing in it; and a room at the entrance
to the premises was equipped for business purposes.
In the order here under review, the Administrator determined
that the tenant is a permanent hotel tenant and entitled to the
protection of the Rent Stabilization Law and the Amended Hotel
Code. The owner was directed to register the unit with the
Division in accord with Chapter 403, Laws of 1983.
In seeking reversal of the Administrator's order, the owner
contends that the tenant had entered into an office lease which
did not permit him to reside on the premises. Moreover, the
current owner never agreed to residential use and the owner's
records do not show that the former owner ever consented to such
use. Furthermore, the Certificate of Occupancy provides for
commercial space.
In opposition to the appeal, the tenant reiterates in
substance the answer made to the Administrator.
The Commissioner is of the opinion that this petition should
be denied.
The Rent Stabilization Law applies to units occupied for
combined residential and commercial purposes as well as to units
ADM. REVIEW DOCKET NO.: BC 410310 RO
occupied solely for residential usage. Accordingly, the fact that
the tenant signed a commercial lease or that the Certificate of
occupancy limits the use to business purposes is not relevant in
this proceeding when said provisions have been waived by actual or
implied permission to utilize the hotel apartment for residential
purposes. Based upon the evidence submitted by the tenant and
the physical inspection conducted on May 20, 1986, the
Commissioner finds that the Administrator was correct in its
determination and properly directed the owner to register the
subject premises.
THEREFORE, in accordance with the Rent Stabilization Law and
Code and the Amended Hotel Code, it is
ORDERED, that this petition be, and the same hereby is,
denied, and the Rent Administrator's order be, and the same hereby
is, affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
ADM. REVIEW DOCKET NO.: BC 410310 RO
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