ADM. REVIEW DOCKET NO.: BK220070RO


                                 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.: BK220070RO

                                                  DISTRICT RENT
                                                  ADMINISTRATOR'S DOCKET
                                                  NO.: ZAH220483R
            LAWRENCE CHARLES,
                                   PETITIONER
          ------------------------------------X

            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW 

               On November 25, 1987 the above-named landlord timely filed a 
          petition for administrative review of an order issued October 
          22,1987 by the District Rent Administrator, concerning the housing 
          accommodation known as Apartment 2L, 577 Vanderbilt Avenue, 
          Brooklyn, New York.

               The Commissioner has reviewed all of the evidence in the 
          record and has carefully considered that portion of the record 
          relevant to the issues raised by the petition for review.

               The case originated in August 1986 when the tenant of the 
          subject eight unit building filed a complaint of rent overcharge.  
          The tenant in her complaint stated she has been in occupancy since 
          February 1950.

               She complained that the current owner who purchased the 
          building in or about 1980 raised the rent from $36 to $58 in 1980, 
          and then to $158 in 1981.

               The owner in his Oct. 14, 1986 answer alleged that the tenant 
          was the super of the building prior to his ownership.  And that he 
          had made major capital improvements to the subject building 
          including 1) converting the building from oil to gas heat for 
          $3800; 2) had spent $600 on roof repairs and masonry; 3) spent $850 
          on building pointing; and 4) $5850 on new building windows.  The 
          owner in his original answer submitted no bills or cancelled checks 
          or contracts to support his expenditure claim.
















          ADM. REVIEW DOCKET NO.: BK220070RO

               The tenant in a July 18, 1987 response to agency request 
          stated she was never a super for the previous landlord.  She stated 
          that she did receive $23 cash a month from the prior owner for 
          taking care of garbage cans, cleaning hallways twice a month, and 
          the back yard once a month.  She stated she paid her established 
          rent control rent during this period.  The tenant did not state the 
          exact dates at her employment at the subject building. 

               The tenant in the same July 18, 1987 response stated the owner 
          should have made proper application for rent increase for capital 
          expenditures rather than arbitrarily raising her rent.

               On Sept. 23, 1987 the tenant submitted a letter from a former 
          owner Steven Galkin stating that there was no designated apartment 
          for a superintendent during his ownership of the premises.  Mr. 
          Galkin din't provide details concerning the exact dates of his 
          ownership of the premises.

               On Oct. 22, 1987, the District Rent Administrator issued the 
          subject order determining that the housing accommodation is subject 
          to the Regulations and established the maximum rent as $56.86 per 
          month effective August 1, 1970.  The order further directed that 
          the owner return to the tenant all rent in excess of the maximum 
          amount collected during the period beginning no earlier than two 
          years prior to Aug. 30, 1986.

               Further the owner was specifically advised in the order that 
          he might apply for rent adjustments for any improvements.

               In the owner's PAR timely filed on Nov. 25, 1987 the owner 
          contends without new evidence that the apartment was a super's 
          apartment not subject to rent regulation.

               The owner further requests that the Commissioner remand the 
          order to the District Rent Administrator for a hearing to determine 
          the proper adjusted rent due to his claim of extensive repairs in 
          both the subject apartment and building-wide.  

               Specifically, the owner claims to have 1) replaced windows 
          throughout the building for $7000; 2) converted heating and hot 
          water system from oil to gas for $4,000; 3) new roof for $1400; 4) 
          new plumbing pipes $2000; 5) replaced tiles and repaired hallway 
          ceiling for $2000; 6) and miscellaneous repairs at $2000 including 
          $350 improvement in tenant's bathroom.  The owner again failed to 
          include any cancelled checks, or contracts to support his claimed 
          building improvement expenditures.



               The owner alleged that the tenant had voluntarily consented to 
          pay the increased rent of $158 a month.







          ADM. REVIEW DOCKET NO.: BK220070RO

               The tenant in her Jan. 2, 1988 answer to the owner's petition 
          contends again that the apartment was never a super's apartment; 
          that she was only given petty cash to take out building garbage, 
          sweep the staircases, and sweep the back yard.

               The tenant further contends in her answer that the owner has 
          not made any repairs in her bathroom.  The tenant contends that any 
          building repairs were made four to five years before her overcharge 
          complaint.

               After careful consideration, the Commissioner is of the 
          opinion that the subject landlord's petition should be denied.

               The Commissioner finds that in this proceeding the subject 
          landlord has the burden of proof in proving that the subject 
          apartment has been decontrolled.

               The evidence of whether or not the subject tenant was once the 
          building superintendent consists solely of statements by the tenant 
          and the current landlord.  There is also a statement by a former 
          owner from the 70's Mr. Steven Galkin who contends there was no 
          superintendent's apartment in the building during his ownership.

               The current owner has only owned the building since 1980, and 
          the alleged period of the tenant serving as super occurred several 
          years before during a prior owner's period of ownership.

               Accordingly, under the weight of the evidence, the tenant's 
          statements are found to be both credible and controlling.  

               The Commissioner accordingly finds that the tenant took 
          occupancy in Feb. 1950 with her husband as a rent paying tenant.

               Some years later, she became a part-time building employee for 
          a period of seven years for a former building owner, Mrs. Donner.  
          It is found that the tenant continued to pay her full rent control 
          rent during this period.

               It is undisputed that the tenant has not performed any 
          superintendent duties for the current owner/petitioner who 
          purchased the building in or about 1980.

               




               Agency policy is clear that an apartment is not decontrolled 
          when a rent-control tenant assumes superintendent duties while 
          still paying rent.  Further upon the termination of the tenant's 
          employment the apartment remains controlled.













          ADM. REVIEW DOCKET NO.: BK220070RO

               The owner was instructed in the subject order to enroll in the 
          MBR program and file separate applications for rent increases based 
          on alleged building wide major capital improvements, and 
          unspecified alleged improvements to the tenant's bathroom.

               The owner instead of filing separate applications for rent 
          increases, chose to file the subject PAR requesting a remand for a 
          hearing to consider improvements to the building as adjusting the 
          rent.

               A PAR of an order fixing maximum rent is an inappropriate form 
          for considering the owner's improvements not contained in the 
          maximum rent.

               The request to remand for hearing is denied as the rent 
          administrator's order was a correct finding of maximum rent based 
          on the evidence before him.  Further the record in this case 
          doesn't contain any documentary evidence of said improvements, as 
          the owner never submitted cancelled checks or contracts for said 
          alleged improvements.

               The owner is again advised to file separate applications for 
          building wide major capital improvements and/or tenant consented to 
          individual apartment improvements.

               Furthermore, pursuant to Section 2207.5(h) of the City Rent 
          and Eviction Regulations the ordering of a hearing by the 
          Administrator in a proceeding is discretionary and not mandatory.

               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, and it is 










               FURTHER ORDERED, that the maximum rent of the subject 
          apartment, effective August 1, 1970, remains $56.86 per month.

          ISSUED:









          ADM. REVIEW DOCKET NO.: BK220070RO

                                                                        
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner             
                        






    

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