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
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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 :
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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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