DHCR Decisions
Admin. Review Docket Nos.: EB 120364 RO and EC 120559 RT
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 SJR No.s: 6204, 5169 and
5115
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NO.: EB 120364 RO
EC 120559 RT
VINCENT GIANELLI,
Petitioner-
Owner, and DRO DOCKET NO.:
EMMA SANTO, DA 120053 RP
Petitioner- (AB 100001 AD)
Tenant
----------------------------------X
ORDER AND OPINION DENYING OWNER'S PETITION FOR ADMINISTRATIVE
REVIEW AND REMANDING PROCEEDING UPON TENANT'S PETITION FOR
ADMINISTRATIVE REVIEW FOR THE LIMITED PURPOSE OF FIXING THE
MAXIMUM RENT AND DETERMINING THE DWELLING SPACE AND ESSENTIAL
SERVICES, FURNITURE
AND FURNISHINGS AND EQUIPMENT
The above-named petitioner-owner and the above-named petitioner
tenant each timely filed a Petition for Administrative Review
against an order issued on February 16, 1990, by the Rent
Administrator at Gertz Plaza, Jamaica, New York, concerning
housing accommodations known as Apartment #1 at 22-11 149 Street,
Whitestone, New York, wherein the Administrator modified his
order of August 14, 1986 (which had been issued under Docket
Number AB 100001 AD); in said modified order the Administrator
determined that the subject housing accommodation was subject to
regulation under the City Rent [Control] Law and the Rent and
Eviction Regulations as of the date of occupancy, established the
maximum rent as of July 1, 1984 at $375.00 per month, and
determined the dwelling space, essential services, furniture and
furnishings and equipment required to be provided with the
subject housing accommodation.
Subsequently, each petitioner filed a Petition under Article 78
of the New York Civil Practice Law and Rules in Supreme Court,
Queens County, in the nature of an application for a writ of
mandamus, requesting that a determination of their respective
Petitions for Administrative Review be issued. Pursuant to a
Stipulation of Settlement entered into between the two
petitioners and the Division on February 25,1992, the matter was
remanded to the Division for further processing.
The Commissioner has reviewed all of the evidence in the record,
Admin. Review Docket Nos.: EB 120364 RO and EC 120559 RT
as well as taken notice of the content of affidavits, petitions
and affirmations submitted in the various Article 78 proceedings
related hereto, and has carefully considered that portion of the
evidence relevant to the issues raised in the administrative
appeals. Pursuant to Section 2208.1(c) of the Rent and Eviction
Regulations, these Petitions for Administrative Review are
consolidated herein.
The issue in the owner's appeal is whether the Administrator was
correct in determining that the subject apartment is a rent
controlled apartment. The issues raised by the tenant's appeal
are whether the Administrator erred in fixing the maximum rent at
$375.00 and in fixing the rent as of July 1,1984 as opposed to as
of May 1,1950, as Section 2202.22 requires if the subject
apartment was never registered.
The record herein indicates the following background to these
proceedings.
In 1946, Emma Russell, the daughter of Harry Russell, married
Louis Santo. The newly married Santos took up residence in the
subject building, the house owned by Harry Russell; and continued
to reside there with the three sons subsequently born to them in
1947, 1952 and 1955, respectively. Subsequent to the commencement
of the proceedings below, Louis Santo passed away. Emma Santo
currently occupies the subject accommodation with one of her
grown children.
In 1954, Harry Russell, who had resided in the subject building
prior thereto, married Raye Russell. Harry and Raye Russell
resided together in the subject building until sometime in the
mid-1980's. Harry Russell fell ill in 1984. In 1984 or 1985,
title to the subject building was changed from its former status
(apparently, in Harry Russell's name, alone) to (apparently) a
Tenancy by the Entirety shared by Harry and Raye Russell. Harry
Russell died in 1986. From sometime in 1984 or 1985, to sometime
in mid-1986, Raye Russell turned the management of the building
over to her niece, Lucille Vasquez. By a deed dated February 11,
1987, Raye Russell transferred title to the subject building to
the current owner-petitioner, Vincent Gianelli.
An inspection of the subject building conducted by a member of
the Division's staff on February 9,1990 indicates that the
subject building is a two story structure built on top of a
basement level; that at the time of said inspection, the first
story contained a three bedroom apartment (the subject apartment)
and that there was another apartment over that, but the
inspector did not gain access to the interior of the second
story. According to statements made by both parties, the second
story contains habitable living space. The tenants assert that at
all times relevant hereto, said space contained a complete
apartment with separate cooking facilities. The owner claims
that for at least some time after Raye and Harry Russell
established their marital domicile in the subject building, the
Admin. Review Docket Nos.: EB 120364 RO and EC 120559 RT
space on the second story contained little more than their
sleeping accommodations, with all residents of the subject
building sharing the kitchen in the subject apartment. The
tenants claim that the two apartments were always separted and
accessed from separate entrances from the exterior of the
building. Raye Russell states that a separate entrance for the
second story was installed in 1956.
It is uncontroverted that from at least 1956 to 1983, the tenants
paid Harry Russell some money on a regular basis. The assertion
of the prior owner, Raye Russell is that said payments were for
shared household expenses. The tenants assert that said payments
were rent.
The proceeding below was originally commenced on October 7,
1985, by the filing by the tenants of a complaint of rent
overcharge. Pursuant to accepted procedure, that proceeding
(which had been assigned Docket Number QC 000246 R) was
terminated, as a matter of internal "bookkeeping", so that the
Administrator could open a proceeding under Section 2202.22 of
the Rent and Eviction Regulations to determine the maximum rent
and other facts relating to the subject tenancy. Docket Number
AB 100001 AD was assigned to that Section 2202.22 proceeding.
On August 14, 1986, under Docket Number AB 100001 AD, the
Administrator issued an order in which it was determined that the
subject apartment was a rent controlled apartment. In said order,
the Administrator determined the maximum rent as of August 1,
1970 at $108.75.
Raye Russell, by her then attorney-in-fact, filed a Petition for
Administrative Review against the order of August 14, 1986. Under
the pressure of an Article 78 Proceeding brought by the current
owner to compel the issuance of a determination of that appeal
and the Division's inability to locate the record below (Docket
Number AB 100001 AD) the Commissioner issued an order and
determination remanding the proceeding to the Administrator for
further development of the facts.
Upon remand, both parties were given notice of an opportunity to
present arguments and/or evidence in response to the
Administrator's announced intention to reconsider the order of
August 14, 1986. Both parties availed themselves of this
opportunity.
Based on the record so compiled on remand, the Administrator
issued the order which is the object of the instant appeals and
which is more fully described hereinabove.
The Commissioner is of the opinion that the owner's Petition
should be denied and that the tenant's Petition should be granted
to the extent of remanding the proceeding to the Administrator
Admin. Review Docket Nos.: EB 120364 RO and EC 120559 RT
for the limited purpose of reconsidering the appealed order
insofar as the amount fixed as the maximum rent, and the dwelling
space and essential services, furniture and furnishings and
equipment that the owner was found to be required to provide; and
reconsidering the date as of which said maximum rent, dwelling
space, essential services, etc. are to be fixed.
The Commissioner finds that the owner did not meet the burden of
proof required to overcome the presumption that the relationship
between two parties, where one lives in accommodations owned by
the other and makes regular payments of money to the other, is a
landlord tenant relationship. The family relationship between
Emma Santo and the tenants' original landlord, Harry Russell, is
not probative of any fact, and creates no presumption, relevant
to these proceedings.
The Commissioner, therefore, finds, that from the beginning of
their occupancy of the subject apartment as a married couple, in
1946, the occupancy of Emma and Louis Santo, and their children,
was based on the creation of a landlord-tenant relationship with
the owner of the subject building, Harry Russell. The
Commissioner notes that the tenants's assertions to that effect
are corroborated by at least one other individual, Rose Vivone,
who had first-hand knowledge of material facts and who has no
apparent interest in these proceedings.
Moreover, the Commissioner notes that the owner appears to have
submitted substantially inaccurate information herein. Annexed to
his submission of November 30, 1989, the current owner annexed
the November 28, 1989 affidavit of Raye Russell. The submission
of said affidavit is the closest the current owner has come in
these proceedings to presenting competent evidence relating to
the events that preceded his purchase of the subject building in
1987. In that affidavit, at paragraphs 8., 9. and 10., Raye
Russell made the following statements:
8. In 1984, my husband Harry became ill, he was 89
[there is a handwritten notation that indicates that
this figure may have been revised to read 84] years of
age and was the only person on the Deed to the house.
Because Harry and I were married at that time for almost
30 years, Harry put myself on the Deed as a co-owner.
Because Harry was so ill, my time was taken up by being
with my husband, Harry Sr.
9. During this period of time, I had also broken my
leg. My dear husband Harry was severely ill and I was
not able to take care of the affairs of the house. At
that time, Lucille Vasquez, my niece, was in the house.
I had asked Lucille to take care of the household
expenses on my behalf.
10. Lucille took care of the house through mid 1986.
During this time, I had not authorized Lucille to
collect any rent at all from Emma [Santo] or her family.
I had never signed any rent checks from Emma or her
Admin. Review Docket Nos.: EB 120364 RO and EC 120559 RT
family, and no rent checks were ever paid to me or on my
behalf.
With their submission of December 5, 1989, the tenants included
copies of what appear to be the front and back of nine checks,
each for $400.00 and bearing a notation which indicates that they
were given in payment of rent for the months of October, 1985
through May of 1986. Each check is drawn on the account of Louis
Santo and Emma Santo, is payable to either Harry Russell, alone,
or Raye and Harry Russell, and appears to bear, on its reverse
side, the endorsement of the payee (or payees) followed by the
endorsement of Lucille Vasquez and what appear to be various
notations and stamps indicating that each check was deposited at
one bank and then paid by the drawers' bank.
The Commissioner finds that either the tenants created nine
astoundingly sophisticated false documents or the current owner
knowingly, or recklessly, submitted, as part of an affidavit, an
untrue statement. The Commissioner believes and finds the latter
to be the case; and notes that although without the finding of
this falsehood, the current owner would still not have met his
burden of proof herein; with this finding, the accuracy of the
entire affidavit of Raye Russell must be called into doubt.
Turning to the tenant's Petition, the Commissioner finds that the
tenant is correct in the assertion that Section 2202.22(b) of the
Rent and Eviction Regulations requires that in a situation where
the apartment was never registered, the Administrator's "order
shall fix or establish the maximum rent as of May 1,1950, or the
date of first renting, whichever is later...." The Commissioner
finds, however, that the Division's records contain two OPA (the
federal Office of Price Administration) registration cards which
show that a building with the address, 22-11 149th Street,
Whitestone, Queens was registered, by an owner other than Harry
Russell, with the Office of Price Administration, in 1943, as a
building containing two rented apartments. The Commissioner notes
the tenants' statement that the addresses on the block where the
subject building is located were changed at some point and that
the subject building was originally known as 22-09 149th Street;
that the tenant Emma Santo stated that she and her father had
resided in the building from 1939; that the logical inferences
created by these two registration cards would, if the cards did
relate to the subject building, essentially, contradict the
allegations of all of the parties to this proceeding; and that
absent these registration cards, there would be no doubt, but
that the maximum rent, dwelling space, etc. would have to be
fixed as of May 1, 1950.
Nevertheless, the existence of these two cards makes it
impossible to determine, based on this record, the date as of
which the maximum legal rent is to be fixed.
Therefore, the Commissioner finds that this proceeding must be
remanded to the Administrator for the sole purpose of
reconsidering that portion of the appealed order which fixed the
maximum rent and determined the dwelling space and essential
services, furniture and furnishings and equipment.
Admin. Review Docket Nos.: EB 120364 RO and EC 120559 RT
THEREFORE, pursuant to all of the applicable statutes and
regulations, it is
ORDERED, that the owner's Petition be, and the same hereby is
denied and that the tenant's Petition be and the same hereby is
granted to the extent of remanding the proceeding to the
Administrator for the sole purpose of reconsidering, in
accordance with this order and opinion, that portion of the
appealed order which fixed the maximum rent and determined the
dwelling space and essential services, furniture and furnishings
and equipment; and it is further
ORDERED, that, insofar as the appealed order determined that the
subject apartment is subject to regulation under the City Rent
Law, the same be and it hereby is affirmed; and it is further
ORDERED, that the automatic stay of so much of the
Administrator's order as may be construed as a direction to pay
arrears and/or overcharges is hereby continued until a new order
is issued upon remand. However, the Administrator's determination
as to the rent is not stayed and shall remain in effect, except
for any adjustments which may be otherwise obtained under the
City Rent Law and/or the Rent and Eviction Regulations, until the
Administrator issues a new order upon remand.
ISSUED:
JOSEPH A D'AGOSTA
Acting Deputy Commissioner
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