ADM. REVIEW DOCKET NO. CE410131RO
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. CE410131RO
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO. BE010023RP
AZIZFARD TRADING COMPANY,
PETITIONER TENANT: MANN MADINA
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 24, 1988, the above-named landlord filed a petition for
administrative review of an order issued on May 13, 1988 by a
District Rent Administrator concerning the housing accommodation
known as the Fourth Floor Apartment, 968 Lexington Avenue, New
York, New York.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issues raised by the petition for administrative
review.
On August 11, 1982, the subject tenant filed with the rent
agency an overcharge complaint. In his complaint, the subject
tenant alleged that he commenced occupancy in the subject apartment
in August, 1964.
In the landlord's answer, dated August 27, 1982, it alleged
that the subject apartment is not subject to the rent control laws
and regulations as the subject building only has two housing
accommodations, pursuant to former Section 2(f)(12) of the City
Rent and Eviction Regulations.
The Rent Administrator issued an order on July 12, 1983 under
Docket NO. 2C32654 which determined that the subject building is
not a two family house, and that the subject apartment is rent
controlled.
On July 29, 1983, the subject landlord filed an administrative
appeal of the above-mentioned order.
ADM. REVIEW DOCKET NO. CE410131RO
The Commissioner issued an order on February 1, 1986 under
Docket NO. CPLA34721. In the above-mentioned order the
Commissioner stated that:
On appeal, the petitioner has raised,
for the first time in this proceeding,
the issue of whether the subject
accommodation should be decontrolled
pursuant to the provisions of
9NYCRR 2200.11. Said section
concerns the commercial or
professional renting of a
controlled housing accommodation
on or after May 1, 1955. As this
issue was not previously addressed
by the District Rent Administrator,
the Commissioner deems it
appropriate to remand the
proceeding to the District Rent
Administrator for consideration
of this issue.
On June 10, 1987, the Administrator mailed to the parties a
notice which pointed out that in the proceeding on remand the
Administrator proposed to "resolve the status of the subject
housing accommodations and determine whether they were rented for
commercial or professional use on or after May 1, 1955."
On June 18, 1987, the subject landlord submitted to the rent
agency a copy of a lease entered into by the subject tenant and the
building's prior landlord which commenced on November 1, 1976 and
expired on October 31, 1978, which stated that the subject
apartment was to be "used and occupied only for an educational
studio, writing for educational films and mediums, and dealing in
antiques." Furthermore, the subject landlord submitted, among
other things, a copy of the subject building's Certificate of
Occupancy (C. of O.), dated November 26, 1940, which noted that the
subject premises contained four floors; that the first floor was
designated as a store; that the second floor was designated as a
salesroom, and that the third and fourth floors were designated as
having one apartment each; and the subject landlord attached a copy
of the subject building's C. of O., dated July 27, 1982, which also
noted that the third and fourth floors were designated as having
one apartment each.
The Division of Housing and Community Renewal (D.H.C.R.)
conducted an inspection of the subject apartment, on November 25,
1987 and December 1, 1987. The inspection revealed that the subject
apartment contained a living room which had one couch, two chairs,
tables and lamps; a bedroom which had a bed, a desk, a chair and a
ADM. REVIEW DOCKET NO. CE410131RO
lamp; a dining room which had a table, four chairs, and a bookcase,
and a kitchen which had a refrigerator stocked with food, and a
cabinet which contained dishes, and pots and pans. Furthermore, in
the inspector's report, the inspector noted that there was no
evidence of the subject apartment being used for a commercial
purpose.
In his response, dated December 8, 1987, the subject tenant
alleged, among other things, that he has resided in the subject
apartment since 1964; that he has worked full-time at Columbia
University since 1964; that the subject building's C. of O.
designated the subject apartment for residential use only; that the
prior landlord had previously given the subject tenant a commercial
lease; that by giving the subject tenant a commercial lease, the
landlord was in violation of the subject building's C. of O., and
that the subject apartment did not qualify for decontrol, pursuant
to former Section 13 of the City Rent and Eviction Regulations, as
the landlord's intent in giving the tenant a commercial lease was
to evade the rent laws.
To his response the subject tenant attached, among other
things, a partial copy of his Form 1040 Tax Return from 1964
through 1966, which noted that the subject tenant resided in the
subject building, and that the subject tenant's occupation was a
professor; and the subject tenant attached a copy of his W-2 form
from 1964 through 1966, which noted that his employer was Columbia
University.
In the order under review herein, issued under Docket NO.
BE010023RP, the Administrator affirmed the rent agency's order
issued on July 12, 1983 under Docket NO. 2C32654.
In its petition the subject landlord asserts, among other
things, that the subject apartment should be decontrolled as it was
used for a commercial purpose; that the subject landlord did not
receive a copy of the aforementioned Commissioner's order which
remanded the proceeding to the Administrator; that the
Administrator's order under review herein did not consider the
issue of the commercial use of the subject apartment; that the
subject tenant voluntarily entered into the aforementioned
"commercial lease"; that the Administrator should have required the
subject tenant "to submit his tax returns for the years of his
tenancy to determine if the rent for the subject apartment was
deducted as a business exemption by the tenant"; that the
Administrator should have held a hearing, and that the
Administrator's determination was without a rational basis.
After careful consideration, the Commissioner finds that the
landlord's petition should be denied.
As to the subject landlord's assertion that the Administrator
ADM. REVIEW DOCKET NO. CE410131RO
should have required the tenant to submit his tax returns, the
Commissioner finds that as the subject landlord raises the issue of
decontrolling the subject apartment it is the subject landlord, and
not the subject tenant, that has the burden of proof in
establishing that an order decontrolling the subject apartment is
warranted.
The Commissioner points out that in the aforementioned
inspection report the inspector noted that there was no evidence of
the subject apartment being used for a commercial purpose.
The Commissioner finds that the only evidence submitted by the
subject landlord to show an alleged commercial use of the subject
apartment was the aforementioned lease commencing on November 1,
1976 and expiring on October 31, 1978 which stated that the subject
apartment was to be used "only for an educational studio, writing
for educational films and mediums, and dealing in antiques." The
Commissioner finds that the above-mentioned lease was for a non-
residential purpose.
For the subject apartment to qualify for decontrol based on a
commercial use, the Commissioner points out that the subject
landlord must prove that the subject apartment had been actually
used for a commercial purpose.
The Commissioner is of the opinion that the aforementioned
lease, at best, evidences the subject tenant's intent in the use of
the subject apartment. However, the Commissioner finds that the
aforementioned lease, by itself, is insufficient evidence in
showing the actual use of the subject apartment.
Based on the record, the Commissioner finds that the subject
landlord has not met its burden of proof in showing that the
subject apartment should be decontrolled.
The record reflects that the subject building's C. of O.
designated the subject apartment for residential purposes only.
Pursuant to the terms of the aforementioned lease, the
Commissioner finds that the renting of the subject apartment by the
prior landlord for a non-residential purpose violated the
regulations of the applicable city agency, i.e., The New York City
Department of Buildings.
As the renting of the subject apartment, during the
aforementioned lease term, violated the regulations of the
applicable city agency, the Commissioner is of the opinion that the
subject apartment does not qualify for decontrol, pursuant to
former Section 13 of the City Rent and Eviction Regulations (now
Section 2200.11 of the above-mentioned regulations).
ADM. REVIEW DOCKET NO. CE410131RO
Pursuant to the provisions of Section 2200.11 of the City Rent
and Eviction Regulations, the rent agency may issue an order
decontrolling a housing accommodation when there is a finding that
that housing accommodation was used for a commercial purpose; and
that the renting of that housing accommodation "complies with the
requirements of law and of city agencies having jurisdiction."
As to the landlord's assertion that the subject tenant
voluntarily entered into the aforementioned non-residential lease,
the Commissioner finds that that assertion, even if true, does not
warrant a finding of decontrol as the terms of that lease violated
the regulations of the applicable city agencies.
Pursuant to Section 2207.5 of the City Rent and Eviction
Regulations, the scheduling of a hearing by an Administrator is
discretionary, not mandatory. Accordingly, the Commissioner finds
that the mere fact that the Administrator did not schedule hearings
does not warrant a revocation of the Administrator's order under
review herein.
The record reflects that on June 10, 1987 the rent agency
mailed to the subject landlord a copy of the aforementioned notice
in which the parties were informed of the issue to be resolved in
the remand proceeding before the Administrator. The Commissioner
notes that the subject landlord did, in fact, submit to the rent
agency a response to the above-mentioned notice.
Even if the rent agency did not mail to the subject landlord
a copy of the aforementioned Commissioner's order under Docket NO.
CPLA34721, the Commissioner finds that the subject landlord had
notice of the issue to be resolved in the remand proceeding before
the Administrator; that the subject landlord had an opportunity to
submit evidence in the remand proceeding before the Administrator,
and that the subject landlord did, in fact, submit several
responses in the remand proceeding before the Administrator.
The record reflects that in determining the order under review
herein, the Administrator considered all of the relevant issues in
the proceeding.
Accordingly, the Commissioner finds that the subject
landlord's petition for administrative review should be denied.
It should be noted that the subject landlord raised the issue
of decontrolling the subject apartment in response to an overcharge
complaint filed by the tenant; that in the aforementioned response,
the subject landlord alleged that the subject apartment should be
decontrolled solely based on the subject premises containing two
ADM. REVIEW DOCKET NO. CE410131RO
housing accommodations; that the subject landlord raised the issue
of decontrol based on commercial use only after the Administrator
determined that the subject apartment does not warrant decontrol
based on the subject premises containing two housing
accommodations, and that that issue of decontrolling the subject
apartment based on commercial use was not raised until
approximately twenty years after the subject tenant commenced
occupancy in the subject apartment.
THEREFORE, in accordance with the City Rent and Rehabilitation
Law, and the Rent and Eviction Regulations, it is
ORDERED, that the landlord's petition be, and the same hereby
is, denied, and that the order issued by the Rent Administrator on
May 13, 1988 under Docket NO. BE010023RP be, and the same hereby
is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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