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
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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
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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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