STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE
APPEAL OF ADMINISTRATIVE REVIEW
Holly Bower, DISTRICT RENT
NO. AG410386 SH
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On June 11, 1990, the above-name tenant filed a petition for
administrative review of an order issued on June 1, 1990 by a
District Rent Administrator concerning the housing accommodation
known as Apartment 429, 222 West 23rd Street, New York, New York
wherein the Administrator determined that the subject apartment
was subject to rent regulation but that no overcharge occurred.
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 July 21, 1986, the tenant filed a complaint of rent
overcharges. The tenant stated therein that she took occupancy
of the subject apartment on February 1, 1985 pursuant o a two-
year lease at a monthly rental of $1,375.00. Accordingly, she
was a permanent tenant of the subject premises, which is a hotel.
The Administrator served the owner with a copy of the tenant's
complaint and requested a complete rental history from April 1,
The owner interposed an answer to the tenant's complaint. The
owner alleged that the subject apartment was not within the
jurisdiction of the Rent Stabilization Law because it was a hotel
apartment which was always occupied by transients. The owner
included several sample registration cards and a letter from the
Metropolitan Hotel Industry Stabilization Association Inc.
(METHISA) to document this claim.
Docket No. EF410021RT - 2 -
In a subsequent communication from the owner, it was alleged that
the subject apartment was exempt from rent regulation based on a
second ground as well. Namely, it was alleged that the subject
apartment was a luxury hotel accommodation which rented for more
than $350.00 per month or $88.00 per week on May 1, 1968.
On September 21, 1987, the Administrator sent notice to the
owner requesting documents to substantiate the claim that the
rents charged and paid on May 31, 1968 exceeded $350.00 per month
or $88.00 per week.
No response to this final inquiry was received from the owner.
In the order here under review, the Administrator found that the
subject apartment was subject to rent regulation because the
tenant took occupancy as a permanent tenant. However, it was
also determined that no overcharge had occurred. The
Administrator found that there was sufficient credible
documentation to show that the most recent occupant prior to the
complainant-tenant paid $70.00 per day. Therefore, the lawful
stabilization rent was established at $1,375.00 per month.
Finally, the Administrator ordered the monthly rental to be
frozen at the stated amount until the owner properly registered
that subject apartment with the Division of Housing and Community
In her petition for administrative review, the tenant requests
reversal of that portion of the Administrator's order which
determined that no overcharge occurred. Contemporaneously, the
tenant filed a request for reconsideration of the Administrator's
order. The substance of the tenant's request for reconsideration
was incorporated as the substance of her petition for review.
The tenant alleges the owner was required to provide a complete
rental history from April 1, 1980 as requested by the
Administrator because the owner did not register the unit as
required on April 1, 1984. The tenant states that the
Administrator erred in only considering the prior rental and not
the complete rental history form April 1, 1980. Further, the
tenant disputes the Administrator's finding that the record
contained sufficient "credible documentation" to support the
determination that no overcharge occurred.
The owner interposed no answer to the petition for review, nor
did the owner file an independent petition for administrative
review. Subsequently, the owner filed a request for
reconsideration. This application requested reconsideration of
only that portion of the Administrator's order which found the
subject apartment to be rent regulated and ordered the owner to
register the subject apartment.
Both the tenant's and the owner's requests for reconsideration
were denied by the Administrator.
Docket NO. EF410021RT - 3 -
Further supplemental documents submitted by the tenant included a
deposition of a prior tenant who was allegedly a permanent tenant
of the subject apartment from 1979 through the summer of 1980.
After careful consideration, the Commissioner is of the opinion
that this petition be denied.
The issue in this case is what period of time the Administrator
should have examined, in reaching her determination. In a case
where an apartment was not registered, Section 2526.1 (a)(3)(ii)
"...the legal regulated rent for purposes of
determining an overcharge shall be deemed to be the
rent charged and paid on April 1, 1980, or for a
housing accommodation not required to be registered by
June 30, 1984, 4 years prior to the date the housing
accommodation was first required to be registered..."
The Commissioner is of the opinion that the owner in this case
was not required to register the subject apartment by June 30,
1984 as it was then not occupied by a permanent tenant.
Accordingly, the Administrator's inquiry should have been
limited to "...4 years prior to the date the housing
accommodation was first required to be registered..." In this
case, the date the petitioner-tenant took occupancy, February 1,
1985, was the date that the subject apartment was first required
to be registered. Accordingly, the Administrator's inquiry into
a rental history should have begun with February 1981.
The Commissioner bases this opinion on Section 2520.11 of the
Rent Stabilization Code. This section enumerates housing
accommodations which are exempt form rent regulation "...for so
long as they maintain the status indicated..." Subsection (g)(1)
states that accommodations in a hotel are exempt when they are
used for transient occupancy. Therefore, when an apartment in a
hotel is used for transient occupancy it is exempt and when it is
occupied by a permanent tenant it is rent regulated.
The tenant neither presents evidence nor does she allege that the
subject apartment was occupied by a permanent resident for the
period of February 1981 through February 1, 1985. On the other
hand, the owner makes an undisputed assertion that for the time
period in question the subject apartment was occupied by
transients. This assertion is corroborated by the owner's
submission of several registration cards and the letter from
METHISA. Accordingly, the Administrator correctly weighed the
evidence presented in reaching her determination.
In accordance with the above, the Commissioner is of the opinion
that the Administrator correctly applied Section 2521.1 (b)(2) in
computing the lawful stabilization rent. As noted by the
Docket No EF410021RT - 4-
Administrator, the rent charged by the owner was less than it
could have charged and the lawful stabilization rent of $1,375.00
was correctly established.
Finally, the Commissioner will not consider the owner's claim
that the subject apartment is not regulated because of the unit's
luxury status. The owner failed to supply documentation of that
claim to the Administrator despite a request to do so, and failed
to file a petition for review. The Commissiioner also notes that
the owner failed to answer the tenant's petition for review.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is, denied,
and that the Rent Administrator's order be, and the same hereby
Joseph A. D'Agosta
Docket No. EF410021RT
ADMINISTRATIVE REVIEW DOCKET NUMBER: EF 410021 RT
PROCESSING ATTORNEY: Jerry Gruen
Copies of orders to be mailed to:
Landlord and/or Attorney Tenant and/or Attorney
Chelsea 23rd St. Corp. Ms. Holly Bower
222 West 23rd Street 222 West 23rd Street
New York, N.Y. 10011 Apartment 429
Attn: Stanley Bard New York, NY 10011
Chelsea 23rd Street Corp. Ms. Holly Bower
c/o Finkelstein, Borah, Schwartz, c/o Ms. Sondra Rutherford
Altschuler Goldstein, P.C. P.O. Box 411
377 Broadway Cooper Station
New York, NY 10013-3993 New York, NY 10276
Attn: Paul Monte, Esq.