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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BK220070RO
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: ZAH220483R
LAWRENCE CHARLES,
PETITIONER
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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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