DOC. NOS.: CD 110158-RT, et al.
                                 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   S.J.R. NO. 4151 (3566)
         IN THE MATTER OF THE ADMINISTRATIVE :   ADMINISTRATIVE REVIEW
         APPEAL OF                               DOCKET NOS.: CD 110158-RT
                    MINNA SCHACHTER,         :                CF 110227-RO
                          PETITIONER-TENANT  :   DRO DOCKET NO.: 58355
                    JAGDISH RAI DHIMAN,      :   Examining Unit
                            PETITIONER-OWNER :
         ------------------------------------X

                    ORDER AND OPINION TERMINATING PROCEEDINGS FOR
                           ADMINISTRATIVE REVIEW UPON REMIT

         These proceedings have been consolidated pursuant to Rent 
         Stabilization ("Code") Section 2529.1(c) as they involve common issues 
         of law or fact.

         This Order and Opinion being issued pursuant to an order of the 
         Supreme Court, County of New York, Index Number 22308/88, Justice 
         Jacqueline W. Silberman, dated September 14, 1989, which ordered remit 
         of an Article 78 Proceeding directing the Division to reconsider its 
         prior Order, S.J.R. No. 3566, Administrative Review Docket Nos. CD 
         110158-RT and CF 110227-RO, issued May 26, 1989, upon which the court 
         proceeding was based.  The May 26, 1989 order was itself a remit based 
         on a "deemed denial" of CF 110227-RO pursuant to a court order dated 
         January 23, 1989 by Justice Israel Rubin of the same court and bearing 
         the same index number.

         On April 1, 1988 and June 22, 1988, respectively, the above-named 
         petitioners filed Petitions for Administrative Review against orders 
         issued on March 23, 1988 and June 6, 1988, respectively, by the Rent 
         Administrator, 10 Columbus Circle, New York, New York, concerning 
         housing accommodations known as the 2nd floor apartment, 108-32 63rd 
         Drive, Forest Hills, New York, wherein the Rent Administrator 
         determined in his first order that the owner did not have to register 
         the apartment as it was not subject to Rent Stabilization, being 
         located in a building of less than six dwelling units.  The proceeding 
         was reopened on April 11, 1988, resulting in the second order which 
         found the building was subject to Stabilization and further found an 
         overcharge of $1283.37, based on the owner's failure to register the 
         apartment, thereby losing the right to have imposed guidelines 
         increases.

















          DOC. NOS.: CD 110158-RT, et al.


         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 tenant commenced this proceeding on August 6, 1985 by filing an 
         objection to registration based on the owner's failure to register her 
         apartment.  (The prior owner had registered the apartment in 1984 
         naming the complaining tenant's mother as the tenant.)

         In answer to the complaint, the owner stated that he purchased the 
         building on May 21, 1985; that the tenant did not receive a lease in 
         her own name from the prior owner upon the death of the tenant's 
         mother; that no security was transferred to him by the prior owner; 
         that the lease he offered her was a "temporary resolution pending the 
         final decision and determination of my application to your [Division 
         as to] whether the tenant in the apartment is exempted from Rent 
         Stabilization."  Attached to his answer was a Certificate of Occupancy 
         dated May 2, 1985 showing the building to be a two- family dwelling.

         In Order Number 58355, issued March 23, 1988, the Rent Administrator 
         determined that the apartment was not subject to Stabilization and 
         terminated the proceeding.

         In her April 1, 1988 petition, the tenant contended that the Rent 
         Administrator's Order was incorrect and should be modified because the 
         two-family building, in which she had lived for 35 years, had been 
         part of a large stabilized apartment complex before being sold to the 
         current owner.  Therefore, she remained stabilized in spite of the 
         Certificate of Occupancy.

         In answer to the tenant's petition the owner stated the complaining 
         tenant was not the tenant of record at the time the apartment complex 
         was converted in 1978-1979 and cited Conciliation and Appeals Board 
         ("CAB") Opinion Number 25607 for the proposition that the apartment 
         therefore became destabilized at the time of her mother's death, her 
         mother being the tenant at the time of the conversion.

         On April 11, 1988, the Administrator notified the parties that the 
         proceeding was being reopened.










         On June 9, 1988 a second Order Number 58355 was issued in which the 
         Rent Administrator determined that the complaining tenant was 




          DOC. NOS.: CD 110158-RT, et al.

         protected by the Stabilization Laws and penalized the owner for not 
         registering the apartment by freezing the rent at the April 1, 1984 
         level of $273.11 thereby finding an overcharge of $1283.37, including 
         treble damages.

         In his petition, the owner contends that the Rent Administrator's 
         Order is incorrect and should be modified because it had been issued 
         without considering a letter from the owner dated April 18, 1988.

         The tenant did not answer the owner's petition, although given the 
         opportunity to do so.

         In the Order issued May 26, 1989 the Commissioner determined that the 
         tenant's petition should be dismissed and the owner's petition denied.  
          More specifically, the Commissioner found that since the 
         Administrator's second order granted the tenant the relief she sought 
         in her objection and in her petition, her appeal was moot and must be 
         dismissed.

         The owner's petition was denied based on a finding that the premises 
         were subject to the Rent Stabilization Law and that the tenant was the 
         lawful stabilized tenant thereof.

         The owner appealed Order Number CF 110227-RO by filing an Article 78 
         Petition resulting in the above-cited September 14, 1989 court order 
         wherein the proceeding was remitted to the Division for further 
         processing and directing that the owner be "given the opportunity to 
         view the exhibits and evidence relied upon by the [Division]" and to 
         comment thereon.

         On September 13, 1991 a hearing was held in this matter by the 
         Division at which each party was represented by counsel.  Upon 
         reviewing the evidence the tenant intended to place into the record, 
         the owner and his attorney agreed to a settlement with the tenant.  In 
         pertinent part, the settlement provides that the owner withdraw 
         thereby his claim that the subject premises were not stabilized.  The 
         owner further agreed that the tenant had lived in the subject 
         apartment from the inception of her family's tenancy and was therefore 
         protected by the Rent Stabilization Law and Code.










         The stipulation also provided that the tenant would be offered and 
         would execute a new two year renewal lease commencing on October 1, 
         1991 for a rental of 6-1/2% (the applicable Rent Guidelines increase) 












          DOC. NOS.: CD 110158-RT, et al.

         greater than the legal stabilized rent of $273.11 established by the 
         Administrator's June 9, 1988 order.  The owner also agreed to inspect 
         the apartment and make certain specified repairs if necessary.

         The tenant agreed that she would execute the renewal lease, to be 
         effective October 1, 1991 and further agreed that a rent 6-1/2% 
         greater than $273.11 ($290.86) would be the legal rent and she would 
         not challenge such amount.

         The Commissioner is of the opinion that these proceedings should be 
         terminated on remit.

         Pursuant to the above-described settlement these proceedings are now 
         moot and should be terminated.  The settlement stipulates that the 
         rent will be a Guidelines increase above the rent established by the 
         Administrator and confirms the stabilized status of the premises and 
         that the tenant is protected by the Rent Stabilization Law and Code.  
         As noted, both parties were represented by counsel.

         Finally, the Commissioner notes that on July 3, 1989 in a parallel 
         proceeding involving these same parties the Administrator issued Order 
         Number ZQ-000023-UC, finding the premises to be stabilized.  That 
         order was revoked on September 6, 1989 under docket number ZDH 110048- 
         RP on the basis that Supreme Court Order Number 22308/88, issued June 
         28, 1989, "restrained/stayed [the Administrator] from issuing an Order 
         under Docket Number Q-000023-UC."  On September 20, 1989 the 
         Administrator commenced a new proceeding under docket number DI 
         110010-RP "to reconsider all facts and issues involved in the 
         previously mentioned proceedings.  This proceeding will be held in 
         abeyance until the Court has rendered its decision and litigation of 
         the issues in question is complete."  Subsequently, the owner 
         commenced an Article 78 Proceeding (S.J.R. No. 5621) resulting in a 
         mandamus order dated June 12, 1991, Justice Leviss, Index Number 
         4788/91, directing the Division to issue an order under docket number 
         DI 110010-RP.  That proceeding is now before the Administrator and 
         there is no provision for a consolidation of such a proceeding with an 
         Administrative Review proceeding.  Nevertheless, the Commissioner 
         hereby notes that the owner, through









         his attorney, agreed at the September 13, 1991 hearing that the 
         proceeding under docket number DI 110010-RP, and the deadline therein 
         imposed by the court under index number 4788/91, were rendered moot by 
         the settlement reached at the hearing.  The Administrator will issue 
         an order under docket number DI 110010-RP shortly after the issuance 




          DOC. NOS.: CD 110158-RT, et al.

         of the order herein.

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

         ORDERED, that these proceedings be, and the same hereby are, 
         terminated.  The Rent Administrator's June 9, 1988 order, (58355, 
         Examining Unit) and the Commissioner's May 26, 1989 order (S.J.R. No. 
         3566, Administrative Review Docket Numbers CD 110158-RT and CF 110227- 
         RO) remain in full force and effect.

         ISSUED:

                                                                              
                                                 ELLIOT SANDER
                                                 Deputy Commissioner








    

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