BF 210431 RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. BF 210431 RO
: DISTRICT RENT ADMINISTRATOR'S
K.S. Katsimbrakis, DOCKET NO. K 3107682 R
TENANT: Nancy Aguayo
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On June 25, 1987, the above-named owner filed a petition for
administrative review of an order issued on May 22, 1987 by a District
Rent Administrator concerning the housing accommodation known as
18 Olive Street, Apartment 3FT, Brooklyn, New York.
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 13, 1984 by the filing of a rent
overcharge complaint. In answer to the 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 July 23, 1986, the Administrator found that the
subject building was not within the jurisdiction of the Rent
Pursuant to the tenant's request for reconsideration, on April 13, 1987
the Division of Housing and Community Renewal (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.
On May 22, 1987 DHCR issued the amended order here under review wherein
the Administrator revoked the order of July 23, 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
BF 210431 RO
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 July 23, 1986.
After careful consideration, the Commissioner is of the opinion that
this 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 apartment 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 July 23, 1986 order which found that the subject building was not
subject to rent stabilization.
It it noted that on July 1, 1987, the Administrator issued an amended
order in this proceeding wherein the Administrator established the
tenant's lawful stabilized rent and directed a refund of overcharges to
The Commissioner is aware that conflicting orders concerning the subject
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. DF 210024 RK).
Accordingly, the Rent Administrator's order was warranted.
THEREFORE, in accordance with the provisions of the Rent Stabilization
Law and Code, it is
ORDERED, that this petition for administrative review be, and the same
hereby is, denied, and, that the order of the Rent Administrator issued
July 23, 1986 be, and the same hereby is, affirmed.
BF 210431 RO
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner