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 :
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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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