ADM. REVIEW DOCKET NO.: BK410288RO




                                 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.: BK410288RO

                                                  DISTRICT RENT
                                                  ADMINISTRATOR'S DOCKET
                                                  NO.: BF410005UC
             JOYCE F.HOLLAND,                     TENANT: Bernard Natta
                                   PETITIONER
          ------------------------------------X

            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

               On November 19, 1987, the above named petitioner-owner filed 
          a Petition for Administrative Review against an order issued on 
          October 15,1987, by the Rent Administrator, 92-31 Union Hall 
          Street, Jamaica, New York, concerning housing accommodations known 
          as Apartment 1, 560 West 162nd Street, New York, New York, wherein 
          the Rent Administrator determined that the subject building was not 
          a hotel and accordingly did not meet the requirements for exemption 
          from the Rent Stabilization Law (RSL).

               The issue in this appeal is whether the owner can seek 
          exemption from the RSL due to an alleged substantial rehabilitation 
          of the subject premises raised for the first time on appeal.

               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 administrative appeal.

               The owner commenced this proceeding on June 10, 1987 by filing 
          an application to determine whether the building was exempt from 
          the RSL on the basis that it was a Class B building in a city of 
          over a million people, the hotel rooms thereof being occupied on a 
          transient basis.  A Certificate of Occupancy (CO) was submitted in 
          support of this application.  However, the owner did not allege 
          that the building had been substantially rehabilitated nor did she 
          submit any evidence showing that a substantial rehabilitation 
          within the meaning of the law had occurred.    















          ADM. REVIEW DOCKET NO.:BK410288RO



               In Order Number BF410005UC, herein under appeal, the Rent 
          Administrator determined that although the building was a Class B 
          building, it was not a hotel and therefore was not exempt from the 
          RSL.

               In this petition, the owner contends that the Rent 
          Administrator's Order is incorrect and should be modified because 
          she had checked the wrong box on the application and the actual 
          reason for an exemption "clearly" was the box entitled "Apartments 
          in buildings completed or substantially rehabilitated as family 
          units, on or after January 1,1974" as substantiated by the CO.

               In addition the owner alleges that this proceeding relates 
          directly to an overcharge proceeding initiated by the tenant 
          (U3123917R) in which the Administrator found an overcharge on 
          August 14,1986.  The owner alleges that the tenant in that 
          overcharge proceeding "deliberately stated incomplete facts and 
          omitted information in order to substantiate his case."  The owner 
          contends that the submission of the present petition constitutes 
          new evidence in that proceeding and therefore "all actions in 
          [that] order [should cease]."

                The owner further alleges that all the owner's claims on 
          appeal were previously submitted in response to a harassment 
          complaint made by the tenant in June 1987.

               The owner seeks reversal of both the above-captioned order 
          (BK410005UC) and the overcharge order.

               The Commissioner is of the opinion that this petition should 
          be denied.

               The owner has alleged no error of fact or law in the order 
          herein under appeal.  Indeed, the owner alleges that she checked 
          the wrong box, i.e., that the error was hers. However, the "error" 
          was beyond the mere checking of a box.  In four typed paragraphs on 
          page two of the application the owner stated the "facts necessary 
          to support" her claim of exemption.  All the facts related therein 
          refer to her claim that the building was Class B for transient 
          guests.  The CO was cited solely to demonstrate that the building 
          had been altered in such a fashion as to qualify as Class B.  
          Nowhere is the phrase "substantial rehabilitation" used by the 
          owner.  For the reasons stated above, there was absolutely no 
          reason for the Administrator to treat the application as one based 
          in whole or part on a substantial rehabilitation.  Accordingly, the 
          petition must be denied without prejudice to the owner's right to 
          file for exemption from the RSL based on substantial 
          rehabilitation, if the facts so warrant.








          ADM. REVIEW DOCKET NO.:BK410288RO

               As to the owner's allegations regarding the August 14, 1986 
          order (CDR21132; U3123917R) finding an overcharge, such allegations 
          could only be made in a timely petition for review of that order.  
          The Division records show that a petition was indeed filed on 
          September 15, 1986 and rejected by the Commissioner on April 24, 
          1987, under docket number AI510068RO wherein the owner was given 
          the right to refile that petition.  No such refiling occurred.  In 
          lieu of such refiling, that order could only be appealed by the 
          filing of a timely Article 78 Proceeding.

               Neither the Commissioner's order (AI510068RO) or the 
          Administrator's order (U3123917R) in the overcharge proceeding is 
          subject to a collateral attack in the instant proceeding.  
          Therefore, that portion of the owner's petition is also denied.

               THEREFORE, in accordance with the Rent Stabilization Law and 
          Code, it is 

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

          ISSUED:



                                                                         
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner   






    

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