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 : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. EG 220143-RO
DISTRICT RENT ADMINISTRATOR'S
JOSEPH GAUDINO DOCKET NO. CK 220550-R
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On July 5, 1990, the above-named landlord filed a petition for
administrative review of an order issued on May 31, 1990 by a District
Rent Administrator concerning the housing accommodation known as 547
Clinton Street, Brooklyn, New York, Basement Apartment.
The Commissioner has reviewed all the evidence in the record and has
carefully considered that portion of the record relevant to the issues
raised by the petition for review.
In November of 1988 the tenant filed a complaint of rent overcharge,
asserting that she moved into a parlor-floor apartment at the subject
building in 1965 at a rent of $65.00 per month; that in 1983 she moved to
the basement apartment with the landlord's assurance of no change in her
status, and that her rent has incrementally gone up to $325.00 per month
without the issuance of rent agency orders.
The landlord's answer acknowledged that the tenant had been living in the
parlor-floor apartment but contended that the tenant accepted the
increases in rent.
Shortly after receiving the tenant's overcharge complaint, the landlord
(with his co-owners) commenced a hold-over proceeding in the Housing Part
of the Civil Court in the County of Kings (Index No. L & T 62456/89), in
which he contended that the subject apartment was not subject to rent
control or rent stabilization.
By decision and order dated August 16, 1989, the Court (Alex J. Colgan,,
J.) awarded final judgment of possession to the tenant, finding that she
"is entitled to the same rent-controlled protection she enjoyed while
living on the first [parlor] floor, the precise legal rent to be
determined in a pending DHCR proceeding between the parties."
Subsequently the landlords brought a motion to "reconsider," contending
that the first-floor (or parlor-floor) apartment, from which the tenant
moved in 1983, was itself not rent-controlled.
DOCKET NUMBER: EG 220143-RO
By decision and order dated December 4, 1989, the Court denied the
landlords' motion, adhering to its earlier decision, which had found,
among other things, that the first-floor (or parlor-floor) apartment from
which the tenant moved in 1983 was at that time subject to rent control.
On May 31, 1990 the District Rent Administrator issued the order here
under review, finding pursuant to the decision and order of the court that
the subject apartment was subject to the Rent and Eviction Regulations
(rent control) and determining that the maximum rent was $225.00 effective
July 1, 1983. The order also pointed out that the landlord could apply
for entry into the Maximum Base Rent ("MBR") system, under which annual
seven and one-half percent rent increases are allowed for qualifying
In his petition for administrative review the landlord contends, in
substance, that the court did not establish the apartment o be a rent-
controlled apartment but merely found that the tenant should be entitled
to rent control protection; that an application for owner-occupancy
decontrol is pending before the agency under Docket No. CK 220550-R; that
the court erroneously established that the apartment from which the tenant
had moved was rent-controlled, and that the rent established by the
District Rent Administrator was too low.
After careful consideration, the Commissioner is of the opinion that the
petition for review should be denied.
With regard to the first issue raised by the landlord, it is clear that
the Court found that the tenant's apartment was subject to rent control.
The contention of the landlord, that the Court merely found the tenant to
be entitled o rent control protection but not that she was rent-
controlled, is not supported by the record. Moreover, the distinction
sought to be drawn by the landlord would, even if accurate, be one of
semantics rather than substance.
As to the landlord's assertion to the effect that an owner-occupancy
decontrol proceeding was pending under Docket No. CK 220550-R, the record
reveals that that is the docket number of the proceeding under review in
As to the assertedly "erroneous" finding by the court that the apartment
from which the tenant moved in 1983 was rent-controlled, the Commissioner
notes that the landlord made the same assertion by way of his motion to
the court to "reinconsider," and that the court's ruling on this issue was
adverse to the landlord.
With regard to the determination of the subject maximum rent, a review
of the record reveals no basis for establishing the rent at an amount
higher than that established by the District Rent Administrator. The
Commissioner notes the landlord's right to apply for entry into the MBR
system, under which annual rent increases may be granted if warranted.
As the landlord, who, with his co-landlords, was represented by counsel in
the court proceeding, has offered no other basis for rejecting the court's
determination or the District Rent Administrator's order, the Commissioner
is of the opinion that the order of the District Rent Administrator should
DOCKET NUMBER: EG 220143-RO
THEREFORE, in accordance with the City Rent and Rehabilitation Law and the
Rent and Eviction Regulations, it is
ORDERED, that this petition be, and the same hereby is, denied, and that
the District Rent Administrator's order be, and the same hereby is,