DHCR Decisions
Adm. Review Docket No.: EB 410125 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
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IN THE MATTER OF THE ADMINISTRATIVE SJR NO.: 6376
APPEAL OF
ADMINISTRATIVE REVIEW
DOCKET NO.: EB 410125 RT
LESLIE BRANDT
DRO DOCKET NO.:
CG 410004 UC
PETITIONER OWNER: AGHADJAN ELGHANAYAN
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioner-tenant timely filed a Petition for
Administrative Review against an order issued on January 4, 1990,
by the Rent Administrator at Gertz Plaza, Jamaica, New York,
concerning housing accommodations known as various apartments at
251 East 62nd Street, New York, New York, wherein the Administrator
granted the owner's application for an order declaring the subject
building exempt from regulation under the Rent Stabilization Law.
Subsequently, the owner filed an Article 78 Proceeding in Supreme
Court, New York County, in the nature of an application for a writ
of mandamus, requesting that a determination of the Petitioner's
administrative appeal be issued.
Thereafter, pursuant to a stipulation, the matter was remanded to
the Division for further processing.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the evidence relevant to
the issues raised in the administrative appeal.
The issue in this appeal is whether the evidence the petitioner has
submitted on appeal is of sufficient weight to warrant a reversal
of the determination below.
This proceeding was commenced on July 20, 1988, by the owner's
filing of an Application By Owner To Determine Whether
Building/Apartment Is Exempt From The Emergency Tenant Protection
Act Or The Rent Stabilization Law. In said applicationthe owner
claimed, in substance, that the subject building contained less
than six housing accommodations and therefore it should be deemed
exempt from regulation under the Rent Stabilization Law. The owner
Adm. Review Docket No.: EB 410125 RT
also alleged that the configuration of thesubject four story
building was as follows: a cellar, a commercial space on the ground
floor, one apartment on the second floor and two apartments each on
the third and fourth floors. The application indicated that the
building was partially occupied; with a commercial tenant on the
ground floor, the second floor apartment (2A-F) occupied by Amy
Weinman, the third floor empty, apartment 4-FR occupied by the
petitioner and apartment 4-R occupied by Paul Wallace. The owner
stated that the building had been mistakenly registered by its
managing agent, Charles H. Greenthal & Co. and the 1961 Certificate
of Occupancy ("C. of O.") indicates that there may only be five
legal housing accommodations in the building. The owner also
alleged that its managing agent had brought its error in
registering the building to the attention of the Division and
subsequently memorialized said communication in a letter dated
February 12, 1987.
Upon being requested to do so by the Administrator, the petitioner
submitted drawings to show the layout of each level of the building
and the dimensions thereof.
One of the tenants, Amy Weinman, answered the owner's application.
In that answer, Amy Weinman alleged, in substance, that the
building contained six or seven housing accommodations on and/or
after July 1, 1974; that she took occupancy under a lease dated
September 30, 1976; and that that initial lease indicated that the
building was subject to rent stabilization.
On January 2, 1990, the owner submitted a response to Amy Weinman's
statement. That response, in substance, consisted of a settlement
agreement between Amy Weinman and the owner. Under it, Amy Weinman
would be provided with a rent stabilized apartment in another
building and would have some of her relocation expenses paid by the
owner. Thereafter, the appealed order was issued.
In the appealed order, the Administrator determined that the
subject building should be deemed exempt from regulation under the
Rent Stabilization Law because "The conversion from ten (10) units
to five (5) units took place prior to the base date of
Stabilization. Furthermore, none of the tenants have been in
occupancy on or before June 30, 1971."
In the Petition, the petitioner claims, in substance, that she
received no notice of the owner's application prior to her receipt
of the Administrator's order and that, therefore, this proceeding
should be remanded to the Administrator to afford the Petitioner
the opportunity to present evidence in opposition to said
application. The petitioner goes on to say that the owner
misrepresented the number of housing units in the building; that at
the time the petitioner took occupancy, ( on August 1, 1976) the
building contained the five units admitted by the owner, plus two
Adm. Review Docket No.: EB 410125 RT
others: a shed, which was attached to the ground floor store and
was used as a housing accommodation by an employee of said store
and another housing accommodation in the cellar. The petitioner
also alleges that the building had been registered as a rent
Stabilized building and the owner had always treated her apartment
as a Rent Stabilized apartment. The tenant further alleges, upon
information and belief, that the building was subject to rent
stabilization because it had received J-51 tax benefits.
Subsequent to the submission of the Petition, the petitioner-tenant
submitted three affidavits from the following individuals:
Howard Greenberg, who had managed the building, as an employee of
Charles H. Greenthal & Co. from some time in or after 1975 until
1980.
Charles Berendzen, who owned the subject building from 1960 to
1971.
Stuart Salinger, who rented the ground floor store from April of
1981 through February of 1988.
The owner has filed an answer opposing the Petition and a response
to the tenant-petitioner's submission of the affidavits of the
above named individuals. In substance, the owner denies that there
were more than five housing accommodations in the subject building,
claims that the C. of O. provides for only five legal housing
accommodations and that the C. of O. must be deemed controlling and
that the affidavits are on their face contradictory of one another,
not credible and suspect. The owner also denies receiving J-51 tax
benefits.
The Commissioner is of the opinion that the Petition should be
granted and that the Administrator's order should be revoked.
The Commissioner finds that the affidavit of Stuart Salinger must
be given little, if any, weight in determining the facts in issue.
That affidavit purports to describe circumstances which existed
prior to the time the deponent leased the ground floor store and
contains no recitation of the manner in which the deponent came
into possession of the information he claims to have as to those
circumstances. On the other hand, the Commissioner finds that the
affidavits of Charles Berendzen and Howard Greenberg are credible;
the deponents therein are disinterested third parties with
firsthand knowledge of the facts in issue.
The current owner states that he took title in 1971 (page 4 of the
owner's affirmation of August 5, 1992). The prior owner, Charles
Berendzen states that for approximately ten years prior to the time
he sold the building, he resided in the shed that is connected to
Adm. Review Docket No.: EB 410125 RT
the rear of the ground floor store and that after he vacated, the
tenants of the store continued to use the shed as a housing
accommodation for their employees; in particular, Renny Reynolds,
who rented the store from 1972 until 1980, had his manager residing
there throughout that period. The affidavit of Howard Greenberg
corroborates the existence of this practice and its continuation up
until 1980, at least.
The Commissioner finds that the affidavits of Howard Greenberg and
Charles Berendzen alone are sufficient to outweigh the owner's
allegations as to the number of housing accommodations contained in
this building from 1960 through 1980. This is particularly so in
light of the fact that the owner's allegations are buttressed by
nothing more than the 1961 C. of O., while these affidavits are
supported by both the uncontradicted statements of the petitioner
and Amy Weinman, that their apartments were rented to them and
their renewal leases were entered into under the then current rent
stabilization guidelines and by the admitted fact that the building
was registered by Charles H. Greenthal & Co. as a rent stabilized
building.
Therefore, the Commissioner finds that the preponderance of the
credible evidence submitted herein proves that there were at least
six housing accommodations in the subject building between 1960 and
1980, during which period the building first became subject to rent
stabilization, and that the petitioner-tenant took occupancy while
the building contained six or more dwelling units.
In arriving at this determination the Commissioner has considered
the points discussed hereinabove as well as the following:
1) a housing accommodation need not qualify as a legal housing unit
under the applicable building codes in order to constitute a
housing accommodation for the purposes of determining whether a
building contains six or more housing accommodations within the
meaning of Section 2520.11 of the Rent Stabilization Code; 2)
therefore the C. of O., which merely recites the number of units
which may legally be occupied as housing units may not be deemed to
be controlling; that that is the case herein is reinforced by the
remoteness in time of the issuance date of the C. of O. relied on
by the owner, 1961, since the first date upon which the subject
building could be deemed to have been subject to the Rent
Stabilization Law was May 12, 1969; 3) the fact that no rent was
paid by the occupant of a housing accommodation does not negate the
fact that the space in question is a housing accommodation; 4) the
record below is unclear as to whether or not the petitioner was
properly served with the owner's application; therefore, the
Commissioner has accepted the petitioner's proofs submitted for the
first time on appeal and determined that in the light of those
proofs there is no need to
remand these proceedings.
Adm. Review Docket No.: EB 410125 RT
THEREFORE, pursuant to all of the applicable statutes and
regulations, it is
ORDERED, that this Petition be, and the same hereby is granted and
that the Administrator's order be, and the same hereby is revoked.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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