EF 410074 RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X S.J.R. Nos. 5874 and 5882
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. EF 410074 RO
: DISTRICT RENT ADMINISTRATOR'S
Joshua Tauber, DOCKET NO. AE 410369 R
TENANT: Susan Freidman
ORDER AND OPINION AFFIRMING COMMISSIONER'S PRIOR ORDER
AND OPINION AND REMANDING PROCEEDING TO THE DISTRICT
On June 14, 1990, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on May 10, 1990, by the
District Rent Administrator, Gertz Plaza, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
14 West 88th Street, New York, New York, Apartment No. 3-B, wherein the
District Rent Administrator determined that the tenant had been
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 administrative appeal.
This proceeding was originally commenced on May 20, 1986 by the filing
of an overcharge complaint. The tenant asserted that she took occupancy
of the subject apartment as a subtenant and that the prime tenancy was
illusory. Included in the submissions was a communication from the
prior tenant to the complainant-tenant advising the complainant of the
date she vacated the subject apartment and supplying the complainant
with a copy of the "renewal" lease in effect when she vacated the
In answer the owner asserted that the complainant was a subtenant of a
M. Keitel and had no right to challenge the rent.
In the Administrator's order of May 10, 1990, the Administrator
determined that the prime tenancy was illusory. Based on the April, 1984
EF 410074 RO
initial registered rent of $435.79, the Administrator determined that
the tenant had been overcharged in the amount of $95,812.75, including
treble damages, and directed the refund of this amount to the tenant.
The owner filed a petition for administrative review of that order. The
owner alleged that the tenant of record of the subject apartment on the
base date (R. Gatsik) was a rent controlled tenant; that the first
tenant after the rent controlled tenant was M. Keitel, who was charged
a fair market rent; that, alternatively, if the DHCR chooses to consider
the complainant tenant the first tenant to take occupancy after the rent
controlled tenant, the tenant's complaint should have been treated as a
fair market rent appeal.
In an order and opinion issued on May 30, 1991, the Commissioner found
that the owner had produced no evidence to refute the finding of
illusory prime tenancy. Based on agency records, the Commissioner
further determined that the prior tenant (R. Gatsik) was a rent
controlled tenant, and that since the complainant-tenant was the first
stabilized tenant to occupy the subject apartment after the rent
controlled tenant, the proceeding should have been remanded to the
Administrator for processing as a fair market rent appeal.
Subsequent thereto, the tenant filed a petition in the Supreme Court
pursuant to Article 78 of the Civil Practice Law and Rules, challenging
the Commissioner's order. By order of Justice Frances Pecora dated
January 8, 1992, the proceeding was remitted to DHCR for further
The tenant thereafter filed a motion in the Supreme Court to compel the
DHCR to render a determination in this proceeding. By stipulation of
settlement between the parties dated November 4, 1992, the DHCR was
required to render a determination of the owner's administrative appeal
on or before February 4, 1992.
The basis for the court remit of this proceeding for further processing
was that certain evidence submitted by the tenant had not reached the
file; namely, an affidavit of the prior tenant (R. Gatsik) dated July
23, 1990. In this affidavit the prior tenant stated that he took
occupancy of the subject apartment in 1976 and always believed that the
apartment was rent stabilized and not rent controlled. This belief was
further bolstered by the fact that subsequent leases were labeled as
"renewal" leases subject to the Rent Stabilization Law and Code.
Additionally, the complainant-tenant asserts that since the prior tenant
took occupancy after July 1, 1974 the subject unit must have been rent
stabilized as a result of vacancy decontrol. Further, the tenant noted
that the owner's actions were all indicative of rent stabilized housing.
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In addition to issuing "renewal" leases, the owner also registered the
subject apartment as rent stabilized in the initial apartment
registration of 1984.
The Commissioner is of the opinion that the earlier order and opinion of
the Commissioner dated May 30, 1991 which remanded the proceeding for
processing as a fair market rent appeal should be affirmed.
In the earlier order and opinion the Commissioner determined that DHCR
records included a rent control Order Determining Facts or Fixing
Maximum Rent pursuant to Section 36 of the Regulations for the subject
apartment dated October 15, 1976 (Docket Number 2AR21568 - 2AR21577)
which listed the tenant as R. Gatsik and determined that the subject
apartment was subject to rent control as of the date of occupancy of
that the tenant and established the maximum rent at $350.00 per month.
This order was modified by the subsequent Order of Modification or
Revocation (Docket Number 2R 111751-760) which also listed Gatsik as the
rent controlled tenant. The Commissioner therefore found that the prior
tenant, R. Gatsik, was a rent controlled tenant and that the
Administrator erred in utilizing the prior tenant's April 1, 1984 rent
as the rent stabilization base rent. Accordingly, the Commissioner
ordered that the case be remanded to the Administrator for processing as
a fair market rent appeal.
The Order Determining Facts or Fixing Maximum Rent (Docket Number
2AR21568-2AR21577) was a final order of the Commissioner determining the
status of the subject apartment. No protest was filed by either party.
Similarly, no protest was filed by either party against the subsequent
Order of Modification or Revocation.
The affidavit from the prior tenant indicates that the prior tenant
believed that he resided in a rent stabilized apartment. However, the
legal statutory status of the subject apartment was determined by the
rent control orders. The Commissioner therefore affirms his prior
finding that the prior tenant was rent controlled and that the
proceeding should be remanded for processing as a fair market rent
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted in part,
and the proceeding be, and the same hereby is, remanded to the District
Rent Administrator for further processing in accordance with this order
and opinion. The automatic stay of so much of the District Rent
Administrator's order as directed a refund 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 pursuant to lease renewals, until the
Administrator issues a new Order upon remand.
EF 410074 RO
JOSEPH A. D'AGOSTA