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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