BF 210284 RO; BA 210010 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

      ------------------------------------X 
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEALS OF                             DOCKET NOS. BF 210284 RO
                                                         BA 210010 RT

                                          :  DISTRICT RENT ADMINISTRATOR'S
           K.S. Katsimbrakis, owner          DOCKET NO. K 3102479 R
                     and                    
           Slyveria Cano, tenant                      

                            PETITIONERS   : 
      ------------------------------------X                             

       ORDER AND OPINION DENYING OWNER'S PETITION FOR ADMINISTRATIVE REVIEW
            AND DISMISSING TENANT'S PETITION FOR ADMINISTRATIVE REVIEW

      On June 26, 1987, the above-named owner filed a petition for 
      administrative review of an order issued by a District Rent 
      Administrator on May 22, 1987 concerning the housing accommodation known 
      as 18 Olive Street, Apartment No. 3RR, Brooklyn, New York.

      On January 16, 1987 the tenant filed a petition for administrative 
      review of an order issued by the NYC Department of Housing  Preservation 
      and Development Division of Rent Policy and Regulation concerning the 
      subject apartment.  This order was not a Division of Housing and 
      Community Renewal (DHCR) order.  Accordingly, the petition for 
      administrative review filed by the tenant under Docket No. BA 210010 RT 
      is dismissed.

      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 commenced on March 10, 1984 by the filing of a rent 
      overcharge complaint.  In answer to the tenant's complaint, the owner 
      stated that the subject building was not under the jurisdiction of the 
      Rent Stabilization Law because it contained only four residential units.  
      In an order issued on April 2, 1986, the Administrator found that the 
      subject building was not within the jurisdiction of the Rent 
      Stabilization Law.

      Pursuant to the tenant's request for reconsideration, on April 13, 1987 
      the DHCR notified all parties of its intent to reopen the proceeding.  
      Both parties were afforded an opportunity to submit any evidence desired 
      in connection with the reprocessing.

      The tenant submitted evidence to indicate that when she took occupancy 
      in 1976 the subject building contained six apartments and the subject 
      building was subsequently reduced to four units.  The owner reasserted 
      that the subject building was not subject to rent stabilization because 
      it contained four apartments.








          BF 210284 RO; BA 210010 RT

      On May 22, 1987 DHCR issued the order here under review wherein the 
      Administrator revoked the order of April 2, 1986.  

      In his petition for administrative review, the owner alleges that DHCR 
      did not have the authority to reopen this proceeding.  Further, the 
      owner asserts that DHCR had issued conflicting orders which determined 
      that the subject building was not subject to rent regulation and that 
      the orders granting unregulated status were the correct orders.  Also, 
      the owner alleges that this tenant occupied the subject apartment after 
      the renovations took place and did not have standing to file the 
      complaint.  Finally, the owner notes that the tenant filed no petition 
      for administrative review of the Administrator's order of April 2, 1986.

      After careful consideration, the Commissioner is of the opinion that the 
      owner's petition should be denied.

      First, the Commissioner finds that DHCR did not exceed its authority by 
      reopening the proceeding.  Section 2529.9 states that upon notice to all 
      parties a superseding order may be issued based on "...illegality, 
      irregularity in vital matters or fraud."  In the original proceeding, 
      the owner never sustained his burden of proof in defeating the 
      presumption that the subject building was regulated.  Clearly, this 
      error by the Administrator constituted an irregularity in a vital 
      matter.  Additionally, conflicting orders existed concerning the subject 
      building.  Clearly, the existence of conflicting orders constituted an 
      irregularity in a vital matter.  Accordingly, the Administrator acted 
      appropriately in reopening this proceeding.  The failure of the tenant 
      to file a petition for administrative review does not affect the 
      agency's authority to reopen a proceeding.

      Second, the Commissioner finds that the substantive objections raised by 
      the owner in his petition for administrative review are without merit.  
      All of the owner-submitted documentation indicates that the renovations 
      which reduced the number of apartments in the subject building from six 
      to four took place in 1984.  The Administrator should have determined 
      the rent regulation status of the subject building based on the number 
      of units present in the subject building on June 30, 1974 the date the 
      building first became subject to the Rent Stabilization Law.  Clearly, 
      the evidence demonstrates that on June 30, 1974 the subject building 
      contained six units.  Accordingly, the Administrator correctly revoked 
      the April 2, 1986 order which found that the subject building was not 
      subject to rent stabilization.

      It is noted that on October 30, 1987, the Administrator issued an 
      amended order in this proceeding, wherein the Administrator determined 
      that the subject building was subject to rent stabilization and 
      established the tenant's lawful stabilized rent and directed a refund of 
      overcharges to the tenant.

      The Commissioner is aware that conflicting orders concerning the 
      building had existed.  All orders are now consistent with the exception 
      of three orders (Docket Nos. 000059515, AJ 210407 R, AL 210313 R) 
      currently being reconsidered by a District Rent Administrator (Docket 
      No. GF 210024 RK).

      Accordingly, the Rent Administrator's order was warranted.

      THEREFORE, in accordance with the provisions of the Rent Stabilization 


          BF 210284 RO; BA 210010 RT

      Law and Code, it is

      ORDERED, that the owner's petition for administrative review be, and the 
      same hereby is, denied, and that the order of the Rent Administrator 
      issued May 22, 1987 be, and the same hereby is, affirmed, and it is
        
      FURTHER ORDERED, that the tenant's petition for administrative review 
      be, and the same hereby is, dismissed.


      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Acting Deputy Commissioner






    

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