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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. BG410123RO
DISTRICT RENT
LILLIAN SERIL, ADMINISTRATOR'S DOCKET
NO. AC420006RP(2AC414469)
PETITIONER
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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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