BG 410222 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
APPEAL OF DOCKET NO. BG 410222 RT
: DRO DOCKET NO. 42336
STEVEN S. MILLER OWNER:CLARENDON MGMT. CORP.
PETITIONER :
------------------------------------X
ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
On July 20, 1987, the above-named petitioner-tenant filed a
Petition for Administrative Review against an order issued on June
15, 1987, by the Rent Administrator, 10 Columbus Circle, New York,
New York, concerning the housing accommodations known as 425 West
23rd Street, New York, New York, Apartment No. 14F, wherein the Rent
Administrator dismissed the tenant's fair market rent appeal.
The record indicates that in September, 1984, the tenant
herein filed a Tenant's Objection to Rent/Registration in which he
stated that he was filing a fair market rent appeal and had first
moved to the subject apartment on November 1, 1982 at a rental of
$1500.00 per month.
In response, the owner stated that the fair market rent
appeal should be denied on the basis that the last rent controlled
tenant, James Beizer, vacated the subject apartment between April
2, 1973 and June 1, 1973, and that the subject apartment was then
occupied in September, 1974, by the resident superintendent who
did not pay any rent and who remained in occupancy until the
tenant herein first moved to the subject apartment. In support of
such contention, the owner submitted a copy of James Beizer's
letter dated April 2, 1973, to the effect that he would vacate the
subject apartment on or before June 1, 1973, and a copy of the
September, 1974 rent roll for the subject premises indicating
Beizer as the old tenant of the subject apartment and indicating
the superintendent as the new resident of the subject apartment.
In Order Number 42336, the Rent Administrator dismissed the
tenant's fair market rent appeal on the basis that the subject
apartment became vacant on June 1, 1973.
In this petition, the tenant alleges in substance that the
fair market rent appeal should not have been dismissed or in the
alternative that unique and peculiar circumstance (the long
occupancy of the subject apartment by the superintendent)
materially affecting the rent has resulted in a stabilization rent
substantially different from the rents generally prevailing in the
same area for substantially similar housing accommodations.
BG 410222 RT
In answer to the tenant's petition, the owner stated in
substance that the superintendent was the first occupant of the
subject apartment after vacancy decontrol and that therefore the
tenant herein was not eligible to file a fair market rent appeal.
The Commissioner is of the opinion that this proceeding
should be remanded to the Rent Administrator for further
processing.
Section 26-513 b. 1. of the Rent Stabilization Law provides
in pertinent part that the tenant of a housing accommodation that
was rent controlled prior to July 1, 1971, and that became vacant
on or after January 1, 1974, may file a fair market rent appeal
with the Commissioner within ninety days after notice of the
initial legal regulated rent has been received from the owner.
In the instant case, the owner submitted insufficient
evidence to show that the subject apartment was vacancy
decontrolled between April 2, 1973 and June 1, 1973 and remained
vacant until the September 1974 occupancy by the superintendent.
The owner submitted a copy of a letter from rent controlled tenant
Beizer to the effect that Beizer would be vacating on or before
June 1, 1973. There is nothing in the record to show that Beizer
did in fact vacate on or before June 1, 1973 and nothing to
establish the history of the subject apartment from June 1, 1973
to September 1974 when the superintendent moved in. The
Commissioner notes that the superintendent may not be deemed a
tenant within the intent and meaning of Section 26-513 as it is
clear that as used therein, the term tenant means a rent
stabilized tenant. Moreover, according to the owner, the
superintendent paid no rent.
Although the owner did not in fact submit sufficient
information to establish the required rental history as noted
above, the Rent Administrator unfortunately thought that
sufficient evidence was submitted and did not afford the owner an
opportunity to submit additional evidence in support of its
allegations. Accordingly, this proceeding is being remanded to
satisfy due process requirements by affording the owner a final
opportunity to submit evidence of the complete rental history of
the subject apartment from April 2, 1973 to the September 1974
initial occupancy of the subject apartment by the resident
superintendent. Such evidence should include copies of rent
ledgers for the subject apartment and/or other competent evidence
showing the history of the subject apartment during this period.
The tenant should be afforded an opportunity to comment on any
evidence submitted by the owner. If it is then established that
the last rent controlled tenant in fact vacated between April 2,
1973 and June 1, 1973 as alleged by the owner and the subject
apartment then remained vacant until the initial occupancy by the
superintendent in September, 1974, the Rent Administrator's order
dismissing the fair market rent appeal should be upheld. If it is
shown that the rental history of the subject apartment in fact
differs from the owner's allegations or if the owner fails to
BG 410222 RT
submit sufficient evidence of the rental history, then the Rent
Administrator should determine whether the tenant herein is
eligible to file a fair market rent appeal pursuant to Section 26-
513 and if so process the fair market rent appeal in accordance
with current procedures.
The Commissioner is of the opinion that the tenant's
contention that the presence of unique and peculiar circumstances
materially affecting the rent has resulted in a stabilization rent
substantially different from the rents generally prevailing in
the same area as the subject apartment is without merit since
occupancy of an apartment by a resident superintendent by itself
does not constitute unique and peculiar circumstances.
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, granted to the extent of remanding this
proceeding to the Rent Administrator for further processing in
accordance with this order and opinion.
ISSUED
ELLIOT SANDER
Deputy Commissioner
BG 410222 RT
|
