DOCKET NO.:  DE420341RO
                              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   :   SJR 6682
     APPEAL OF                                 ADMINISTRATIVE REVIEW
                                           :   DOCKET NO. DE420341RO
                                               DISTRICT RENT ADMINISTRATOR'S
     WILLIAM GOTTLIEB,                     :   DOCKET NO. BB420008RP
                            PETITIONER                                  
     --------------------------------------X            


            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


     On May 10, 1989, the above-named landlord timely filed a petition for 
     administrative review of an order issued October 27, 1987 by the Rent 
     Administrator, concerning the housing accommodation known as the top floor 
     apartment, 136 Bank Street, New York, New York.

     Subsequently, and after more than ninety days had elapsed from the time he 
     filed his petition for administrative review, the landlord deemed his 
     petition as having been denied, and sought judicial review in the Supreme 
     Court of the State of New York pursuant to Article 78 of the Civil Practice 
     Law and Rules.

     After considering the Article 78 petition, the Court issued an order 
     remitting the proceeding to the New York State Division of Housing and 
     Community Renewal (DHCR) for further consideration.

     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 review.

     On March 17, 1983 the subject landlord filed a letter with the rent agency 
     which alleged that the subject apartment was owner occupied and that it 
     should be decontrolled.

     To the letter the landlord attached an affidavit from Robert Rohacek, which 
     was sworn to on September 20, 1982, which alleged that he resided in the 
     subject building from July, 1959 to August 1970, and that the prior 
     landlords had resided in each of the apartments in the subject building 
     "prior to renting them out so as to decontrol them."

     On March 23, 1983 the rent agency mailed a notice to the subject landlord 
     requesting that he submit "documentary evidence" showing that the subject 
     apartment was owner occupied, and to show the length of time of the 
     landlord's occupancy, within seven days of the above-mentioned date.

     On April 5, 1983, the rent agency mailed to the landlord a final notice 
     requesting that the landlord submit evidence to substantiate his allegation 






          DOCKET NO.:  DE420341RO

     of owner occupancy of the subject apartment within seven days of the above- 
     mentioned date.  The notice stated that the following items would be helpful 
     to prove owner occupancy:


               a)   voter registrations in effect during the 
                    alleged owners' occupancy of the subject 
                    apartment;

               b)   Moving or warehouse bills and cancelled 
                    checks;

               c)   Utility bills - including, among other 
                    things, gas, electric or telephone bills;

               d)   Affidavits of witnesses who have personal 
                    knowledge of owner occupancy;

               e)   Mail bearing Post Office cancellation stamp;

               f)   Landlords' Driver registrations;

               g)   Charge accounts, and

               h)   Any other documents which would be helpful to 
                    prove owner occupancy of the apartment.


     On April 5, 1983 the subject landlord submitted an affidavit from Jules 
     Klebanoff, sworn to on March 30, 1983, which asserted, among other things, 
     that the affiant has operated a moving and storage business since 1954, and 
     that at the request of the prior landlord the affiant went to the top floor 
     of the subject building to survey and estimate the cost of moving the 
     landlords' possessions into storage.

     On April 14, 1983 the subject landlord submitted an amended affidavit by 
     Jules Klebanoff, sworn to on April 10, 1983, which asserted that when the 
     affiant spoke to the prior landlord in the top floor apartment the landlord 
     had "mentioned that he had been living in the apartment over two years."

     On June 2, 1983 the rent agency mailed a "Notice of Commencement to 
     Determine Facts or Fix Maximum Rent," which noted that the Administrator 
     proposed to determine that the subject apartment was rent controlled, and to 
     establish the apartment's maximum rent at $100.00 per month, effective 
     September 1, 1961.  The notice also noted that the Administrator proposed to 
     determine that no evidence has been submitted to substantiate the landlord's 
     allegation of owner occupancy.

     The notice afforded the parties to this proceeding seven days from the 
     above-mentioned mailing date to respond to the Administrator's proposed 
     order.

     On September 2, 1983 the rent agency mailed to the subject landlord a notice 
     which stated that:

               Landlord is required to submit the evidence requested 
               regarding owner occupancy by September 23, 1983.  
               Failure to submit will result in the issuance of a final 


          DOCKET NO.:  DE420341RO

               order as proposed.


     On October 7, 1983 the subject landlord submitted a response reiterating his 
     allegations that the subject apartment was owner occupied.

     The aforementioned response also asserted, among other things, that the 
     subject landlord is prepared to go in front of the rent agency for a 
     hearing; that if the rent agency does not order a hearing then the subject 
     landlord requested an opportunity to submit further documentation to 
     establish owner occupancy, and, the subject landlord asserts, that there is 
     no rational basis for the rent agency to establish a lower rent than the 
     rent "established between the parties."

     On February 6, 1984 the Administrator issued an order, under Docket No. 
     2AD41669, which determined that the subject apartment is rent controlled, 
     and that its maximum rent is $100.00 per month, effective September 1, 1961.  

     On December 16, 1986 the subject landlord submitted a letter to the rent 
     agency which requested that the rent agency reopen this proceeding.

     To the letter the subject landlord attached, among other things, the 
     affidavits which were previously submitted to the Administrator in the 
     proceeding under Docket No. 2AD41669.

     On March 31, 1987 the rent agency mailed a notice which informed the parties 
     to this proceeding that the Administrator is reopening this proceeding.  The 
     notice stated that the Administrator is proposing to:


               Sustain the order issued on February 8, 1984 under 
               Docket #2AD41669.  The affidavits submitted in the 
               request for reopening are not sufficient to substantiate 
               the dates of the landlord's occupancy of the apartment.  
               Landlord also failed to submit any of the corroborative 
               documentary evidence requested in the Notice of April 5, 
               1983.


     The above-mentioned notice afforded the parties to this proceeding twenty 
     days from the mailing date of the notice to file a response.

     On May 19, 1987 the subject landlord submitted an affidavit from Emanuel 
     Popolizio, sworn to on April 30, 1987, which asserted, among other things, 
     that the affiant is an attorney, and had represented the prior landlords of 
     the subject building; that the prior landlords had resided in the subject 
     apartment for at least one year "commencing in the late 1950's"; that the 
     affiant had socially visited the prior landlords in the subject apartment; 
     that the affiant does not remember specifically the dates the prior 
     landlords resided in the subject apartment; that such information might be 
     contained in the affiant's legal files, and that the affiant stated that he, 
     "will, however, attempt to requisition said file, and supplement this 
     affidavit, as soon as practicable, with any pertinent information that may 
     be obtained from same."

     On June 30, 1987 the subject landlord filed a letter with the rent agency 
     which asserted that Mr. Popolizio has located the aforementioned legal file, 
     but has been unable to review it.  Furthermore, the subject landlord 






          DOCKET NO.:  DE420341RO

     requested an extension of time to submit further evidence, "to allow Mr. 
     Popolizio the opportunity to inspect his legal file and submit additional 
     information to supplement the Affidavit on record."  The subject landlord's 
     letter also requested that the rent agency conduct a hearing to determine 
     the factual issues in this proceeding.

     The record reflects that the subject landlord did not submit any further 
     evidence to the Administrator.

     On October 27, 1987 the Administrator issued the order under review herein 
     and determined that the Administrator's order issued under Docket No. 
     2AD41669 should be affirmed.

     The subject landlord's petition asserts, among other things, that the 
     Administrator's order is "against the weight of the evidence and was 
     rendered without the benefit of a hearing, thus depriving the Petitioner of 
     a reasonable opportunity to be heard"; that the affidavits submitted by 
     Emanuel Popolizio has not been rebutted by the subject tenant, and that, as 
     the subject landlord states, "since the Affidavits of Mr. Popolizio were 
     unrebutted, the Petitioner met its burden of proof by establishing through 
     a preponderance of the evidence that he was entitled to the relief requested 
     in the application for decontrol."

     After careful consideration, the Commissioner is of the opinion that the 
     subject landlord's petition should be denied.

     The Commissioner notes that the subject landlord did not file a petition for 
     administrative review of the Administrator's order issued under Docket No. 
     2AD41669.

     Pursuant to Section 2207.8 of the City Rent and Eviction Regulations, absent 
     an order of remand, the Administrator, "may not modify, supersede or revoke 
     any order issued under these or previous regulations unless he finds that 
     such order was the result of illegality, irregularity in vital matters, or 
     fraud...."

     The Commissioner finds that the subject landlord did not show that the 
     Administrator's order issued under Docket No. 2AD41669 was the result of 
     illegality, irregularity in vital matters, or fraud.

     Accordingly, the Commissioner finds that the Administrator's order under 
     review herein (Docket No. BB420008RP) correctly affirmed the rent agency's 
     order issued under Docket No. 2AD41669, which determined that the subject 
     apartment is rent controlled.

     Even if the subject landlord had filed a petition for administrative review 
     of the order issued under Docket No. 2AD41669, the Commissioner is of the 
     opinion that the Administrator's order still would have been affirmed.



          DOCKET NO.:  DE420341RO


     The Commissioner finds that in this proceeding the subject landlord has the 
     burden of proof in proving that the subject apartment has been decontrolled.

     The Commissioner finds that the affidavits that were submitted by the 
     subject landlord has no probative value in showing that the subject 
     apartment had been owner occupied, as they did not specify the dates or the 
     exact length of time the prior landlords allegedly occupied the subject 
     apartment; that the accuracy of the memory of the affiants are not reliable 
     as the affidavits were prepared over twenty years from the time the 
     landlords allegedly occupied the subject apartment, and that the affiants 
     did not submit any corroborating documentary evidence to substantiate their 
     allegations.

     The Commissioner further finds that the subject landlord has not submitted 
     any documentary evidence which would establish that the subject apartment 
     had been owner occupied even though the subject landlord was given ample 
     opportunity to do so by the Administrator.

     The Commissioner further finds that the alleged failure of the subject 
     tenant to rebut any of the aforementioned affidavits does not relieve the 
     subject landlord of having to meet his burden of proof in showing that the 
     subject apartment has been decontrolled.

     Accordingly, the Commissioner finds that the subject landlord has not met 
     his burden of proof in showing that the subject apartment has been 
     decontrolled due to owner occupancy.

     As the Administrator gave the subject landlord an ample opportunity to 
     submit documentary evidence establishing owner occupancy decontrol, and 
     having failed to do so, the Commissioner is of the opinion that it was not 
     necessary for the Administrator to have ordered a hearing in this 
     proceeding.

     Furthermore, pursuant to Section 2207.5(h) of the City Rent and Eviction 
     Regulations the ordering of a hearing by the Administrator in a proceeding 
     is discretionary and not mandatory.

     Accordingly, the Commissioner finds that the fact that the Administrator did 
     not order a hearing in this proceeding does not warrant the revocation of 
     the Administrator's order in this proceeding.

     THEREFORE, in accordance with the City Rent and Rehabilitation Law and the 
     Rent and Eviction Regulations, it is 

     ORDERED, that this petition be, and the same hereby is, denied, and that the 
     Administrator's order be, and the same hereby is, affirmed, and it is 

     FURTHER ORDERED, that the maximum rent of the subject apartment, effective 
     September 1, 1961, is $100.00 per month.

     ISSUED:

                                                                               
                                                      JOSEPH D'AGOSTA
                                                 Acting Deputy Commissioner




    

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