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
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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
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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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