Docket No. BI830047RO
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.: BI830047RO
DISTRICT RENT
ADMINISTRATOR'S DOCKET
Richard Sperandio NO.: WE86515UC
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely petition for
administrative review of an order issued concerning the housing
accommodations known as 157 Montgomery Street, Various Apartments,
Eastchester, New York.
The Commissioner has reviewed all the evidence in the record
and has carefully considered that portion of the record relevant to
the issues raised by the petition.
The issue on appeal is whether the Administrator's order was
correct.
The owner commenced this proceeding by filing with the
Administrator an Application requesting a determination that the
subject premises was exempt from the Emergency Tenant Protection
Act (ETPA). The owner based his request on the alleged conversion
of one of the six apartments into an office by the previous owner.
The owner argued that, since there were now less than six
apartments in the subject building, it was no longer subject to the
jurisdiction of ETPA. The owner submitted documentation in support
of his allegation, including various documents from the town of
Eastchester which certified to the conversion and that the subject
premises now contained only five apartments.
Despite the extensive documentation submitted by the owner, the
Administrator found that the subject premises was not exempt from
ETPA. The Administrator based this finding on a DHCR inspection
which revealed that the apartment which had allegedly been
converted into an office contained beds and a refrigerator. The
apartment additionally contained a kitchenette, in which was found
Docket No. BI830047RO
a hot plate. The inspector noted that the owner "attended the
inspection..".
On appeal, the owner states that the building consists of five
dwelling units and one "office space rental unit".
The Commissioner is of the opinion that this petition should be
denied.
As noted previously in this order, the owner submitted
extensive documentation in support of his claim that, as the
subject building only contains five apartments it should be exempt
from ETPA. This documentation includes a Building Permit, Plumbing
Permit, Certificate of Occupancy, et al issued by the town of
Eastchester, all attesting to the conversion of the apartment in
the subject building and to the fact that the subject building
contains five apartments. The Administrator however, based its
finding on the DHCR Inspection Report, which stated that the
allegedly "converted" office contained features that rendered it
usable as an apartment.
The Commissioner notes that various documents submitted by the
owner are dated 1975. In that year the subject premises were
inspected by the Town of Eastchester, said inspection disclosing
that the apartment had been converted to an office. The
Commissioner further notes that "the D.H.C.R. inspection took place
during 1987. Thus, any ensuing "re-conversion" of the office back
to an apartment may have taken place during the intervening 12
years.
The Commissioner additionally notes that the owner witnessed
the D.H.C.R. inspection, and that the results of that inspection
are explicitly named by the Administrator in its order, which was
served upon the owner. The owner in his appeal did not in any way
attack the finding of the inspection report, and it is the actual
usage of the subject premises, as revealed by the inspection that
must control.
THEREFORE, in accordance with the provisions of the Tenant
Protection Regulations, 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.
ISSUED:
Joseph A. D'Agosta
Deputy Commissioner
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