BH 420292 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. BH 420292 RO
: DRO DOCKET NO. ZAK-420367-R
132 ORCHARD STREET REALTY CORP.
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 11, 1987, the above-named petitioner-landlord filed
a Petition for Administrative Review against an order issued on
July 7, 1987, by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
132 Orchard Street, New York, New York, Apartment No. 4.
The Administrative Appeal is being determined pursuant to the
provisions of the Rent and Eviction Regulations for New York City.
The issue herein is whether the Rent Administrator's order
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 initiated in November 1986, by the
tenant's filing of a rent overcharge complaint. ON December 16,
1986, the landlord was served with a copy of the tenant's
complaint. On January 14, 1987, the landlord's attorney asked for
a twenty day extension to answer the tenant's complaint. In
February 1987, the landlord indicated that the tenant would be
withdrawing his overcharge complaint and that the notice of
withdrawal would be sent shortly. No further communication was
received from the landlord.
The Rent Administrator's order, appealed herein, listed the
maximum collectible rent for the subject apartment as $71.34 per
month effective January 1, 1979 to the present not including
1986-87 maximum base rent increases if the landlord was eligible
to collect same and not including any fuel cost adjustments which
the landlord may be entitled to collect. This order was based
upon an examination of the rent records for the subject apartment.
In this petition, the landlord alleges in substance that the
tenant occupied the subject apartment rent free as superintendent
of the subject premises and therefore should not be considered a
rent controlled tenant, and that the tenant told the landlord that
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he would withdraw his overcharge complaint and the landlord relied
on such representation in answering the complaint. The landlord
submitted no evidence in support of its contentions.
In answer to the petition, the tenant stated in substance
that he has lived in the subject apartment since 1943, and that
the landlord is harassing him and wants him to vacate the subject
The Commissioner is of the opinion that this petition should
The landlord has submitted no evidence in support of its
contention that the tenant herein was the superintendent of the
subject premises or even stated how long the tenant allegedly
acted in such capacity. It is noted that if the subject apartment
was first rented to the tenant herein and the tenant later became
the superintendent, the apartment would revert back to rent
control status upon termination of the tenant's employment.
Moreover, this is not a de novo proceeding so that the owner's
contention, raised for the first time on appeal, cannot be
considered. It is further noted that the tenant never withdrew
his complaint during the proceeding before the Rent Administrator
although there may have been settlement discussions so that the
landlord was obligated to file an answer on the merits to said
complaint if it wanted the merits of its case to be considered.
Since the landlord did not file an answer on the merits, the Rent
Administrator's order was warranted.
With regard to the tenant's allegation that the landlord is
harassing him so that he will vacate the subject apartment, the
tenant may file a harassment complaint at the DHCR Enforcement
Bureau at 156 William Street.
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations for New York City, it is
ORDERED, that this petition for administrative review be, and
the same hereby is, denied, and, that the order of the Rent
Administrator be, and the same hereby is, affirmed.
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