Docket No. DK420019RT
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. DK420019RT
DISTRICT RENT
ADMINISTRATOR'S DOCKET
Caren Sherman, NO. CH420651R
PETITIONER
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ORDER AND OPINION REMANDING PROCEEDING TO THE RENT ADMINISTRATOR
On November 9, 1989, the above-named tenant filed a petition
for administrative review of an order issued on October 6, 1989 by
a District Rent Administrator concerning the housing accommodation
known as the basement apartment, 126 East 19th Street, New York,
New York.
This proceeding was commenced by the subject tenant filing an
overcharge complaint, dated August 22, 1988. The complaint
alleged, among other things, that the subject tenant has resided in
the subject apartment since 1968, and that the subject apartment's
registration form should be corrected.
On September 27, 1988 the rent agency mailed to the subject
landlord a copy of the subject tenant's complaint and a notice
affording the subject landlord twenty days from the above-mentioned
date to file an answer.
The subject landlord's response, dated October 11, 1988,
alleged that the subject building has two residential units, and
Docket No. DK420019RT
that it is not subject to rent regulations. The landlord also
alleged that the subject tenant's complaint should be dismissed as
the tenant did not timely object to the subject apartment's
registration statement.
To the response the subject landlord attached a copy of the
subject apartment's 1984 registration statement, which states that
the subject apartment is exempt from rent regulations due to
commercial use.
On March 27, 1989 the rent agency mailed to the subject
landlord a notice requesting copies of the subject apartment's
leases from April 1, 1984 to the present.
On April 20, 1989 the subject landlord filed a response which
asserted that there were no written leases for the subject premises
as all of the aforementioned leases were entered into by an oral
agreement.
In the order under review herein, the Administrator stated
that:
The subject apartment was registered as exempt
on April 1, 1984 for commercial/professional
purposes. Accordingly, pursuant to Section
2520.11(n) the subject apartment is not under
the authority of the Rent Stabilization Code.
As such, this Agency lacks jurisdiction over
this matter.
The subject tenant's petition asserts that she has resided in
the subject apartment since 1968; that she has not used the subject
apartment for any commercial purposes, and that the subject
apartment is subject to rent control.
The subject landlord's answer, dated February 12, 1990,
asserts, among other things, that the subject tenant had filed an
earlier overcharge complaint under Docket No. CC410303R, which
stated that she initially occupied the subject apartment in June,
1972; that the above-mentioned overcharge complaint was withdrawn
by the subject tenant on April 26, 1988; that, as the subject
landlord asserts, the subject apartment was registered as exempt
due to commercial use, and therefore is not subject to rent
regulations; that the subject tenant "is estopped at this late date
from challenging the registration"; that as the subject tenant's
earlier overcharge complaint stated that she initially occupied the
subject apartment in June, 1972, the subject landlord asserts that
the complainant can not be subject to rent control; that the
subject tenant did not dispute the landlord's assertion in the
proceeding before the Administrator that the subject building only
has two residential units, and that therefore the subject building
is not subject to rent stabilization.
Docket No. DK420019RT
The subject tenant submitted an affidavit, sworn to on March 7,
1990, which alleges, among other things, that the subject tenant
first occupied the subject apartment in 1968; that for several
months prior to June, 1972 the subject tenant and her husband
separated; that the subject tenant asserts that she did not live in
the subject apartment during that time period; that the subject
tenant returned to the subject apartment in June, 1972; that during
the subject tenant's absence from the subject apartment she
continued to pay all utility bills and rent for the subject
apartment, and that there are presently four residential units in
the subject building.
After careful consideration, the Commissioner is of the opinion
that this proceeding should be remanded to the Rent Administrator
for further processing.
The Commissioner is of the opinion that the subject landlord
has the burden of proof in showing that the subject apartment has
been used for a commercial purpose.
As the Administrator did not request evidence from the subject
landlord which would substantiate the landlord's allegation of
commercial use, the Commissioner is of the opinion that this
proceeding should be remanded to the Administrator for a
determination of the issue of the subject apartment being used for
a commercial purpose.
The Commissioner is of the opinion that if the Administrator
should determine that the subject apartment has been used for a
commercial purpose, then the Administrator should determine that
the subject apartment is exempt from rent regulations.
The Commissioner is also of the opinion that if the
Administrator should determine that the subject apartment has not
been used for a commercial purpose, then the Administrator should
determine the rental status of the subject apartment.
Furthermore, the Commissioner is of the opinion that in
determining the rental status of the subject apartment, if
applicable, the Administrator should determine the date of the
subject tenant's first occupancy of the subject apartment.
If the Administrator should determine that the subject tenant
first occupied the subject apartment in June, 1972, then the
Commissioner is of the opinion that the Administrator should
determine the number of housing accommodations in the subject
building.
Pursuant to Section 2520.11(d) of the Rent Stabilization Code,
the Commissioner is of the opinion, if applicable, that in
determining the number of housing accommodations in the subject
building the Administrator should determine the number of housing
Docket No. DK420019RT
accommodations in existence on the date the subject building first
became subject to the Rent Stabilization Law (RSL).
The Commissioner is of the opinion that if the Administrator
should determine that the subject apartment has not been used for
a commercial purpose; that the subject tenant first occupied the
subject apartment in June, 1972, and that the subject building
contained six or more housing accommodations on the date the
building first became subject to the RSL, then the Administrator
should determine that the subject apartment is rent stabilized.
If the Administrator should determine that the subject
apartment is rent stabilized, then the Commissioner is of the
opinion that the Administrator should determine the subject
apartment's legal regulated rent, pursuant to Section 2522.6 of the
Rent Stabilization Code, and order the subject owner to refund to
the subject tenant any amount collected in excess of the legal
regulated rent, pursuant to Section 2526.1 of the Rent
Stabilization Code.
If the Administrator determines that the subject apartment has
not been used for a commercial purpose, and that the subject tenant
first occupied the subject apartment since 1968, then the
Commissioner is of the opinion that the Administrator should
determine whether the subject apartment is subject to rent control.
If the Administrator should determine that the subject
apartment is rent controlled, then the Commissioner is of the
opinion that the Administrator should commence an Administrative
Determination, pursuant to Section 2202.22 of the City Rent and
Eviction Regulations, to determine the subject apartment's maximum
rent.
As to the subject landlord's allegation that the subject tenant
is estopped from objecting to the initial apartment registration
statement at this time, the Commissioner notes that the ninety day
requirement in objecting to the initial apartment registration
statement applies only to the initial rent-stabilized tenant to the
apartment on or after April 1, 1984. As the subject tenant does
not fall within the above-mentioned category, the Commissioner
finds that the applicable regulations pertaining to objections to
rent registration statements do not apply to the subject tenant.
Accordingly, for all of the aforementioned reasons, the
Commissioner finds that this proceeding should be remanded to the
Rent Administrator.
THEREFORE, in accordance with the City Rent and Rehabilitation
Law, and the Rent and Eviction Regulations, it is
ORDERED, that this proceeding be, and the same hereby is,
remanded to the Rent Administrator to determine the rental status
of the subject apartment, and if applicable to establish the
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subject apartment's legal rent. The Administrator's order under
review herein is stayed, pursuant to Section 2208.11 of the City
Rent and Eviction Regulations, until a new order is issued on
remand.
ISSUED:
Joseph A. D'Agosta
Acting Deputy Commissioner
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