Docket No. BG410123RO
                                 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. BG410123RO

                                                  DISTRICT RENT
          LILLIAN SERIL,                          ADMINISTRATOR'S DOCKET
                                                  NO. AC420006RP(2AC414469) 
           
                                   PETITIONER
          ------------------------------------X


            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


               On July 20, 1987, the above-named landlord filed a petition 
          for administrative review of an order issued on June 16, 1987 by 
          the Rent Administrator concerning the housing accommodation known 
          as Apartment 902, 201-225 West 86th Street, New York, New York.

               The Commissioner has reviewed all of the evidence in the 
          record relevant to the issues raised by the petition for 
          administrative review.

               On November 29, 1982, New York City's Department of Rent and 
          Housing Maintenance-Office of Rent Control (the governmental agency 
          which regulated rent controlled apartments prior to April 1, 1984) 
          issued an order under Docket No. 2AC414469 which increased the 
          subject apartment's maximum rent by $184.22 per month based on a 
          finding of partial professional use of the subject apartment.

               The subject tenants filed with the Office of Rent Control a 
          protest of the order issued under Docket No. 2AC414469.  In their 
          protest the tenants asserted, among other things, that the subject 
          premises were recontrolled "following the expulsion of the landlord 
          from the Rent Stabilization Association"; that there was no 
          restriction on professional use when the subject apartment was rent 
          stabilized; that the increase in the maximum rent resulted in a 
          rent which was higher than the legal regulated rent under rent 
          stabilization; that the increase in the maximum rent "is rewarding 
          the landlord for the acts which led to her expulsion," and that the 
          tenants did not use their apartment for professional purposes.

               The Commissioner of the Division of Housing and Community 
          Renewal (D.H.C.R.) issued an order on January 31, 1986 under Docket 
          No. CPTA21,294 which remanded the proceeding to the Administrator.  












          Docket No. BG410123RO

          In the above-mentioned order, the Commissioner stated, among other 
          things, that:

               When the controlled rent for the subject accommodation 
               was established in 1980(2AD38585) it should have 
               encompassed all services and usage then in effect.  It 
               must be ascertained if the tenant was partially using the 
               accommodation for professional purposes at that time.  
               Since the rent records and prior proceedings are at the 
               District Rent Office it is best done there.

               On September 19, 1986, the rent agency mailed to the parties 
          a notice which directed them to "submit any evidence available as 
          to the date the tenant first began using part of the subject 
          apartment for professional purposes," within twenty days of the 
          above-mentioned date.

               On October 2, 1986, one of the subject tenants submitted his 
          answer which alleged, among other things, that he has been employed 
          as a teacher since the commencement of his occupancy in 1974; that 
          the tenant has used a small portion of the apartment for painting 
          "for his own enjoyment" since the commencement of his tenancy; that 
          the tenant has "sold some of the paintings, such sales representing 
          works created from the outset of the tenancy and prior to that 
          date"; that "the use of the apartment has not changed since the 
          inception of the tenancy," and that, as the tenant asserted, the 
          landlord has not denied that "the present use has continued since 
          the inception of the tenancy."

               In a letter, dated October 6, 1986, the subject landlord 
          requested a thirty day extension to submit evidence that the 
          subject apartment is used for professional purposes.

               The record reflects that the subject landlord did not submit 
          an answer to the Administrator.

               In the order under review herein, the Administrator revoked 
          the order issued on November 29, 1982 under Docket No. 2AC414469.

               In the landlord's petition she asserts, among other things, 
          that when the subject apartment was rent stabilized the subject 
          tenant did not have permission to use the apartment for a 
          professional use; that as the subject apartment is rent controlled, 
          the landlord is entitled to a rent increase for the professional 
          use of the apartment; that the Administrator's order under review 
          herein "is devoid of any information which would indicate the 
          reason for the revocation of the earlier order"; that "the order is 
          unsigned and its effectiveness is thus disputed and in doubt"; that 
          in the proceeding before the Administrator, the subject landlord 
          did not have an opportunity to submit a response or have a hearing, 
          and that the subject landlord was denied due process in the 
          proceeding before the Administrator.






          Docket No. BG410123RO


               After careful consideration, the Commissioner finds that the 
          landlord's petition should be denied.

               The Commissioner finds that the allegations in the tenants' 
          answer were unrebutted by the subject landlord in the remand 
          proceeding before the Administrator.

               As noted above, the record reflects that the subject landlord 
          did not submit an answer in the remand proceeding.

               As to the issues raised in the landlord's petition pertaining 
          to the tenants' use of the subject apartment, the Commissioner 
          finds that as the landlord has not established that those issues 
          which she raises for the first time upon administrative review 
          could not reasonably have been offered or included in the remand 
          proceeding before the Administrator, they are outside the scope of 
          the Commissioner's review in this proceeding and will not be 
          considered in determining the subject tenants' use of the subject 
          apartment prior to it being recontrolled.

               In addition, the record reflects that the subject building has 
          an outstanding finding of harassment against it since May 4, 1981.

               Accordingly, the Commissioner finds that the Administrator's 
          revocation of the maximum rent increase in the order under review 
          herein should not be disturbed.

               As to the landlord's assertion that she was denied due process 
          in the proceeding before the Administrator, the Commissioner finds 
          that that assertion is without merit.

               The Commissioner points out that the subject landlord does not 
          deny receiving the above-mentioned notice, dated September 19, 
          1986, which directed her to "submit any evidence available as to 
          the date the tenant first began using part of the subject apartment 
          for professional purposes," within twenty days of the above- 
          mentioned date.

               The Commissioner further points out that in her above- 
          mentioned letter dated October 6, 1986, the subject landlord did, 
          in fact, request a thirty day extension to submit an answer.

               The Commissioner finds that the Administrator's order under 
          review herein was issued more than eight months after the date of 
          the above-mentioned letter.
               Accordingly, the Commissioner finds that the landlord was 
          given ample time to submit an answer in the remand proceeding 
          before the Administrator.

               The Commissioner points out that the subject landlord did not 
          request a hearing in the remand proceeding before the 












          Docket No. BG410123RO

          Administrator.

               Even if the landlord did request a hearing, the Commissioner 
          finds that the ordering of a hearing is not mandatory, but it is 
          within the discretion of the Administrator.

               As to the landlord's assertion that the Administrator did not 
          sign the order under review herein, the Commissioner finds that, 
          even if that assertion were true, the subject landlord has not 
          demonstrated that she was prejudiced by the Administrator's alleged 
          failure to sign the order.

               Accordingly, the Commissioner finds that the landlord's 
          petition should be denied.

               THEREFORE, in accordance with the City Rent and Rehabilitation 
          Law and the Rent and Eviction Regulations, it is

               ORDERED, that this petition be, and the same hereby is, 
          denied, and that the Administrator's order be, and the same hereby 
          is, affirmed.

          ISSUED:



                                                                            
                                             Joseph A. D'Agosta
                                             Deputy Commissioner
    

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