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


          ------------------------------------X
          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
          ------------------------------------X

            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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