DOCKET NUMBER: SJR 4736; CK 120078-RT (SJR 4337)
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 SJR 4736
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: CK 120078-RT
: (SJR 4337)
DRO DOCKET NO.: BB 120002-AD
EDWARD DUNN-RULLEN &
JOSEPHINE DIAZ PETITIONER :
------------------------------------X
ORDER AND OPINION REOPENING PROCEEDING, DENYING PETITION AND REMANDING
TO RENT ADMINISTRATOR AFTER REVIEW AND RECONSIDERATION PURSUANT
TO JUDGMENT OF COURT
On November 3, 1988 the abovenamed petitioner tenants (mother & adult son)
filed a Petition for Administrative Review against an order issued on
October 21, 1988 by the Rent Administrator concerning the housing
accommodations known as 35-21 29th Street, Basement Rear, Long Island
City, Queens.
On November 30, 1989 the Commissioner issued an order granting the
petition in part.
The owner, Catrina Stuparich, by her agent, John Casella, instituted an
Article 78 proceeding and the matter was remitted by the Court as
discussed more fully infra.
The issues herein are the regulating status of the apartment and the
proper rent thereof.
The herein appealed order of the Rent Administrator found that the
apartment was subject to rent control and contained 3 rooms and
established a rent of $193.91 as of January 1, 1987.
The record discloses that the building contains 7 apartments and that this
apartment (formerly a superintendent's apartment) had been rented to these
tenants by a prior owner on February 1, 1956 of a rent of $65.00 per
month. The current owner acquired the building in May 1979 at which time
the tenants were paying $130.00 per month as month-to-month tenants.
Various leases were entered into thereafter.
The rent was established by the Administrator based on various equities in
the record and essentially reflected a finding that the current owner had
been operating under a bona fide ut erroneous belief that the apartment
was decontrolled.
In their petition the tenants, in substance, challenged the room-count and
the amount of the rent.
The Commissioner, as abovenoted, granted the petition in part finding that
the apartment contained 2 rooms rather than 3 (based on an uncontroverted
floor plan submitted by the tenants) and further finding that the
Administrator had used an incorrect procedure for establishing the rent.
DOCKET NUMBER: SJR 4736; CK 120078-RT (SJR 4337)
The rent was reestablished at $108.90 per month based on the original 1956
rent updated to reflect various service and financial adjustments.
In the proceeding before the Administrator the owner had alleged that the
apartment was decontrolled because it had been created by a conversion
from non-housing space in 1950 by a prior owner but submitted no
conclusive evidence and did not press the point. Since the petition had
been filed by the tenant's rather than the owner, the Commissioner did not
consider that question on appeal.
In the abovenoted Article 78 proceeding the owner reasserted the claim to
decontrol. The court, in substance, remitted the matter for the
Commissioner to consider that issue.
In response to a Notice after remit the owner submitted copies of an
Altered Building Application approved July 20, 1950, approved plans,
permits and an architect's affidavit, indicating an ordinary cellar and 6
apartments in the building and proposing the creation of an additional
apartment in the cellar or basement, and a Certificate of Occupancy dated
January 9, 1951 reciting 1 apartment in the basement and 6 other
apartments on the upper floors.
Copies were served on the tenants and their attorney and no responses have
been received.
The commissioner, after review and reconsideration pursuant to judgment of
the Court, is of the opinion that the petition should be denied and the
proceeding remanded for further processing.
The Commissioner finds that the apartment had, in fact, been created by
conversion from non housing to housing use after February 1, 1947 and is,
therefore, decontrolled pursuant to Section 2202.2f(9) of the Rent and
Eviction Regulations for New York City.
However, since the building contains 7 apartments, it is subject to
stabilization.
The Commissioner further finds that the apartment contains 2 rather than 3
rooms and the Stabilization registration should be amended to reflect that
fact.
Since the question of rent has hitherto been considered solely an the
basis of rent control rather then stabilization, the matter should be
remanded for the establishment of proper stabilized rents by the
Administrator on notice to all parties.
An interim rent of $158.73 per month (the last lease rent actually paid by
the tenants) is established as of the first rent payment date occurring
after the date of issuance hereof. All arrears or overcharges are stayed
until a new order is issued on remand. The Administrator may if
necessary, permit the installment payment of any arrears.
THEREFORE, pursuant to the Rent Stabilization Law and Code and the Rent
and Eviction Regulations for New York City, it is
ORDERED, that this proceeding be, and the same hereby is, reopened; that
the Commissioner's prior order of November 30, 1989 and the Rent
Administrator's order of October 21, 1988 be, and the same hereby are,
revoked; that the petition be, and the same hereby is, denied; and that
the proceeding, and the same hereby is, remanded to the Rent Administrator
DOCKET NUMBER: SJR 4736; CK 120078-RT (SJR 4337)
for further processing in accord herewith.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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