DOCKET NUMBER: SJR 4727;DH410016-RO;DH 410026-RO
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.:SJR 4727;DH 410016-RO
: DH 410026-RO
DRO DOCKET NUMBER: BK 410004-AD
HERBERT KASHIAN PETITIONER :
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
AND MODIFYING ORDERS OF RENT ADMINISTRATOR
On August 8, 1989 the abovenamed petitioner owner filed Petitions for
Administrative Review against orders issued on July 6, 1989 by the Rent
Administrator concerning the housing accommodations known as 244 West 12th
Street, Apartments 1 & 2, Lower Manhattan.
The owner subsequently instituted a Article 78 proceeding based on a
"deemed denial" of the petitions and the matter was remitted by the court.
The Commissioner deems it appropriate to consolidate the petitions for
disposition herein.
The issue herein is whether the apartments qualify for decontrol pursuant
to 9 NYCRR 2100.9(e) (formerly Section 9(5) of the State Housing Rent
Regulations) because they were created by the conversion of prior rooming
house accommodations after February 1, 1947 and before May 1, 1950.
If the conversion occurred before February 1, 1947 they became, and
remain, part of the rent controlled housing stock.
If it occurred after February 1, 1947 but before May 1, 1950 decontrol (if
warranted at all in this case for reasons discussed more full infra)
attached by operation of law without the necessity for any orders.
If it occurred after May 1, 1950 but before April 30, 1962 decontrol
(subject to the above caveat) requires the issuance of orders and there
are requirements as to minimum floor area and other items pursuant to 9
NYCRR 2200.2f(10) & 2200.9 (formerly Section 2f(10) and Section 9 of the
Rent and Eviction Regulations for New York City).
If it occurred after April 30, 1962 such decontrol is specifically barred
by 9 NYCRR 2200.9(d)(1).
In the instant proceeding (BK 410004-AD) the owner applied for decontrol
of the subject apartments (or a declaration that they had been
decontrolled as a matter of law) alleging that a prior owner, Theresa
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Pons, had net-leased the subject building (244 West 12th Street) along
with 2 adjoining buildings (240 & 242 West 12th Street) around 1940 and
thereafter accused the subject building to be converted from a 10 unit
rooming housing to a 4 unit class A apartment house and took title in the
latter part of 1947. Similar actions were alleged with respect to the
other 2 buildings.
With the application or in response to subsequent notices the owner
submitted copies of 1943 federal registrations showing rooming house
accommodations, a 1947 contract of sale, rent records commencing November
1947, an order issued in December 1952 by the State Local Rent
Administrator establishing a controlled rent as of May 1, 1950 for
another apartment (obviously class A) in the building, IRS documents and
an affidavit from the son and bookkeeper of Theresa Pons all of which, it
was urged, supported the owner's allegations of a conversion at the time
alleged.
The herein appealed orders of the Rent Administrator denied the owner's
application stating that the regulations require the creation of
"additional housing accommodations" and here there are fewer
accommodations (even though they are class A instead rooming house
accommodations) and that in prior proceedings orders had been issued in
1980 finding each of the apartments subject to control (2AD 40083 & 2AD
39843).
In his petition the owner reiterates his prior allegations and urges that
it was erroneous to interpret the regulations to require an increase in
the total number of housing accommodations in the building. The owner also
notes that the Administrator's order concedes that the conversion occurred
"during 1947 and 1948."
In response, the tenant of Apartment 2, Helen Bozkurt, alleges that
contrary allegations as to the time of the conversion had been made by, or
on behalf of, the owner in prior proceedings and that the same issues had
been finally determined adversely to the owner in such prior proceedings.
The Commissioner is of the opinion that the petitions should be denied.
All the regulations cited herein refer to "additional housing
accommodations". If, after conversion, there are fewer accommodations
than before, decontrol is not warranted even if class A apartments have
replaced rooming house accommodations. This has been the traditional
position of this agency and its rent control predecessors. See ART 11811
L; ART 11899-L & ART 11952-L.
Moreover, in prior proceedings the owner had sought decontrol of apartment
2 alleging a conversion after May 1, 1950 and prior to April 30, 1962.
Therein it was adduced that the conversions in the building had occurred
piecemeal over several years and had not been finally completed and
legalized until October 1963 and a new certificate occupancy issued until
November 14, 1963. An order was issued on August 26, 1982 finding that
the apartment did not qualify for decontrol because the owner had not
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established that the apartment was created before April 30, 1962 and
decontrol was therefore barred as abovenoted and also because there were
no "additional" accommodations created (CJR 7465;7284; CPLA 32,690;
32691;33453). The owner instituted an Article 78 proceeding against that
order but was unsuccessful.
The Commissioner also notes that the evidence submitted In the instant
proceeding is circumstantial and inferential. The prior owner, Theresa
Pons, who was obviously a professional landlord and who presumably would
have had more direct evidence at hand, did not seek decontrol and, in
fact, acquiesced in the establishment of controlled rents in the premises.
There must be some limit to how often even a jurisdictional issue can be
litigated.
The Commissioner further notes that the Administrator's instant orders
contain language, "The subject premises was converted from ten (10)
rooming house units into several self contained apartments during 1947 and
1948....", which the owner in his petition interprets as a finding that
the conversion was actually completed at that time.
The Commissioner is of the opinion that the phrase is in the nature of an
arguendo premise rather than a finding. Since it was not necessary to the
determination of the issues presented, the Administrator's order's should
be modified so as to delete it.
The Commissioner finds that the apartments do not qualify for decontrol.
This order is with prejudice to the owner instituting any further
proceedings for decontrol pursuant to 9 NYCRR 2100.9(e), 22002f(10) or
2200.9.
THEREFORE, pursuant to the Rent and Eviction Regulations for New York
City, it is
ORDERED, that these petitions be, and the same hereby are, denied and that
the orders of the Rent Administrator be, and the same hereby are, modified
as above set forth and, as so modified, affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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