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. DG 810348 RT
: DRO DOCKET NO. YCL-8-3-
0001-UC,
JOAN C. SILKE YCI-8-1-
0006/R
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On July 18, 1989, the above-named petitioner-tenant filed a
Petition for Administrative Review against orders issued on June 14,
1989, and June 16, 1989, by the Rent Administrator, White Plains,
New York, concerning the housing accommodations known as 403 St.
Barnabas Place, Yonkers, New York, Apartment No. 3F,
wherein the Rent Administrator determined that the subject
premises is not subject to the Emergency Tenant Protection Act
(hereafter ETPA) because it contains less than six units and
terminated the tenant's overcharge proceeding on the basis of the
determination that the subject premises was not subject to the
ETPA.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2500.9 of the Tenant Protection Regulations.
The issue herein is whether the Rent Administrator's order
was warranted.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issue raised by the administrative appeal.
This proceeding was originally commenced by the tenant's
filing of a rent overcharge complaint on September 2, 1988. On
November 18, 1988, the landlord filed an application to determine
whether the subject premises was exempt from the ETPA on the basis
that it contained fewer than six apartments. In support of such
application, the landlord submitted a copy of a Certificate of
Occupancy for the subject premises disclosing that the subject
premises contained five apartments.
In response to the landlord's application, the tenant stated
in substance that the subject premises and the neighboring
building - 401 St. Barnabas Place - should be considered one
building containing ten apartments and that the landlord was
granted a major capital improvement rent increase for the subject
premises under docket YBC8-2-0023/OM so that the subject premises
DG 810348 RT
should be considered subject to the ETPA.
On May 31, 1989, an inspection was conducted at the subject
premises. Such inspection disclosed that the subject premises had
a separate entrance, a separate roof, a separate water main, a
separate sewer line and separate electric service.
In Order Number YCL-8-3-0001-UC issued on June 14, 1989, the
Rent Administrator determined that the subject premises was exempt
from the ETPA and in Order Number YCI-8-1-0006/R issued on June
16, 1989, the Rent Administrator terminated the tenant's rent
overcharge complaint on the basis of the June 14, 1989 order
finding the subject premises exempt from the ETPA.
In this petition, the tenant alleges in substance that the
subject premises cannot be exempt from the ETPA because it should
be considered part of the adjoining building and because the owner
applied for and received a major capital improvement rent
increase.
In answer to the tenant's petition, the landlord stated in
substance that the Rent Administrator's order was warranted and
that the tenant had vacated the subject apartment.
The Commissioner is of the opinion that this petition should
be denied.
Section 2500.9 (d) of the Tenant Protection Regulations
provides in pertinent part that buildings containing six or more
dwelling units are subject to the ETPA and that a building shall
be deemed to contain six or more dwelling units if it is part of a
multiple family garden-type maisonette dwelling complex containing
six or more dwelling units having common facilities such as a
sewer line, water main or heating plant and operated as a unit
under common ownership notwithstanding that certificates of
occupancy were issued for portions thereof as one or two family
dwellings.
An examination of the record in this case including the
physical inspection discloses that the subject premises is not
part of a horizontal multiple dwelling in conjunction with the
adjoining building - 401 St. Barnabas Place - but must be
considered a separate building since it has its own separate
entrance, separate electrical service, separate sewer, separate
water main and separate roof. Since the subject premises by
itself contains only five residential units, it is not subject to
the ETPA and the Rent Administrator's orders finding the subject
premises exempt from the ETPA and terminating the tenant's rent
overcharge complaint are warranted.
However the Rent Administrator's order issued under docket
YBC8-2-0023/OM which granted the landlord a major capital
improvement rent increase for the subject premises must be revoked
since DHCR had no jurisdiction to grant any rent increase because
DG 810348 RT
the subject premises are exempt from the ETPA.
THEREFORE, in accordance with the provisions of the Tenant
Protection Regulations and the Emergency Tenant Protection Act of
1974, it is
ORDERED, that this petition for administrative review be, and
the same hereby is, denied, and, that the orders of the Rent
Administrator issued under docket numbers YCL-8-3-001-UC and YCI-
8-1-0006/R be, and the same hereby are, affirmed, and that the
Rent Administrator's order issued under docket YBC8-2-0023/OM be,
and the same hereby is, revoked.
ISSUED
ELLIOT SANDER
Deputy Commissioner
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ADMINISTRATIVE REVIEW BUREAU
COVERING MEMORANDUM
ARB Docket No.: DG 810348 RT
DRO Docket No/Order No.: YCL-8-3-001-UC, YCI-8-1-0006/R
Tenant(s): Joan C. Silke
Owner: Sylvia Kroener
Code Section: 2500.9 of Tenant Protection Regulations
Premises: 403 St. Barnabas Place, Yonkers, New York, Apt. 3F
Order and Opinion Denying Petition
Petition denied on basis evidence of record discloses subject
premises contains fewer than six housing units so Rent
Administrator properly determined that subject premises is exempt
from the ETPA.
APPROVED:
Processing Attorney:
Supervising Attorney:
Director:
Deputy Commissioner:
Mailed copies of Order and Determination to:
Tenant(s)
Owner
Tenant's Atty
Owner's Atty
Date: : by
signature
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