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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 ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FB 410310 RO
SULZBERGER-ROLFE,
D.R.O. DOCKET NO.: LC 000149 AD
TENANTS: LOUIS AND FLORENCE WILLNER
PETITIONER
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ORDER AND OPINION REMANDING PROCEEDING ON APPEAL
On February 14, 1991, the above named petitioner-owner filed a
Petition for Administrative Review against an order issued on
January 14, 1991, by the District Rent Administrator, 92-31 Union
Hall Street, Jamaica, New York, concerning housing accommodations
known as Apartment 11D, 251 East 51st Street, New York, New York,
wherein the District Rent Administrator placed the subject
apartment under rent control.
Subsequent thereto, the owner filed a petition in the New York
County Supreme Court pursuant to Article 78 of the Civil Practice
Law and Rules seeking an annulment of the "deemed denial" of its
petition for administrative review.
The Commissioner notes that this proceeding was initiated prior
to April 1, 1984. Sections 2526.1(a)(4) and 2521.1(d) of the
Rent Stabilization Code (effective May 1, 1987) governing rent
overcharge and fair market rent proceedings provide that
determination of these matters be based upon the law or code
provisions in effect on March 31, 1984. Therefore, unless
otherwise indicated, reference to sections of the Rent
Stabilization Code (Code) contained herein are to the Code in
effect on April 30, 1987.
The issue in this appeal is whether the District Rent
Administrator's order was warranted.
The applicable sections of the law are Sections 20A and 42 of the
former Rent Stabilization Code.
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant
to the issue raised by the administrative appeal.
This proceeding was commenced on January 29, 1984, by the
tenant's filing of a rent overcharge complaint with the New York
City Conciliation and Appeals Board (CAB), the agency formerly
charged with enforcing the Rent Stabilization Law.
On February 21, 1984, the CAB informed the New York City
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Department of Housing Preservation and Development (HPD) that a
records check indicated that the subject apartment was not
enrolled with the Rent Stabilization Association (RSA).
On May 15, 1984 the owner informed the CAB that although the
subject building had been converted to cooperative ownership, the
apartments represented by unsold shares had been continuously
enrolled with the RSA with an RSA Number of 072298.
On June 5, 1987, the Division of Housing and Community Renewal
(DHCR) notified the owner that a proceeding had been instituted
pursuant to Section 2202.22 of the Rent and Eviction Regulations
to establish the status and/or maximum rent for the subject
apartment based upon the owner's failure to join or remain a
member in good standing of the RSA prior to April 1, 1984. DHCR
requested from the owner copies of the Certification of
Compliance and the RSA Certificate.
On July 13, 1987 the owner informed DHCR that it was unable to
obtain the requested documentation from the RSA. The owner also
stated that pursuant to the Omnibus Housing Act of 1983 all RSA
records became the property of DHCR on April 1, 1984, and that
therefore the requested documentation was being held by the DHCR.
On April 14, 1988 the District Rent Administrator notified the
owner that DHCR proposed to determine that the subject apartment
was subject to rent control as of February 29, 1984 (the date of
referral from the CAB to HPD) and to establish the maximum rent
at $185.00 per month.
On April 15, 1988, the owner submitted to DHCR copies of the
following documents:
1) a letter from the RSA to the owner dated
April 13, 1988 stating that the subject
apartment had been enrolled in the RSA since
1969;
2) a letter from the owner to the RSA dated June
17, 1980 which enclosed a copy of the Third
Amendment to the Offering Plan for the
subject building declaring it a co-op along
with a supporting affidavit dated May 2,
1980 and also a dues payment for 22
apartments of the subject building and an
adjustment of the RSA bill for dues to
reflect payment for the remaining unsold rent
stabilized apartments;
3) an RSA Transfer of ownership Form (account
number 07229) dated February 13, 1976 which
was signed by the owner and marked "PAID"
wherein the owner paid annual membership dues
of $686.00 for 196 apartments of the subject
building; and
4) a Notice to Attorn to Receiver dated February
20, 1976 (Index Number 02247/76, New York
State Supreme Court, New York County) stating
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that Sulzberger-Rolfe had been appointed
manager of the subject building.
On April 22, 1988, the tenant, through her attorney, agreed with
the Administrator's proposed determination, and requested that
DHCR make a determination that she did not owe the owner any rent
arrears, and that she had been overcharged since May 1, 1983.
On June 15, 1988, DHCR mailed to the owner a Final Request for
evidence, such as cancelled checks, receipts or bills for dues to
substantiate its allegation of continued membership in the RSA
from 1969 and up to and including March 31, 1984.
On June 24, 1988, the owner responded by contending in substance
that the DHCR request of June 15, 1988 was burdensome and
unnecessary; that the owner had already submitted conclusive
evidence to DHCR of the continuous enrollment of the subject
premises with the RSA since 1969; that the owner had never
received any notice that it was either expelled or suspended by
the RSA, and that this fact should be reflected in the RSA files
which were turned over to the DHCR; and that absent a showing
that the owner was expelled or suspended from the RSA, there was
no basis for alleging contrary to the evidence.
In Docket Number LC-000149-AD issued January 14, 1991, the
District Rent Administrator determined that the subject apartment
was subject to the provisions of the Rent and Eviction
Regulations based on the owner's failure to join or remain a
member in good standing of the RSA prior to April 1, 1984, and
accordingly established the maximum legal rent of the subject
apartment as $185.00 per month.
In this petition, the owner contends in substance that the
District Rent Administrator's order is incorrect and should be
reversed because:
1) the Administrator had no statutory authority
to place the subject apartment under rent
control because the Administrator based her
decision on a former section (YY51-4.0) of
the Rent Stabilization Law which was
expressly repealed by the Omnibus Housing Act
of 1983;
2) the owner has been a member in good standing
of the RSA since prior to April 1, 1984, and
the subject premises has been enrolled in
the RSA since 1969;
3) the owner expressly requested DHCR to review
the records of the RSA for any evidence of
the owner's expulsion from the RSA, but the
Administrator made no effort to review RSA
records and presented no evidence to the
owner which contradicted the April 13, 1988
letter from the RSA; and
4) even if the owner was not a member in good
standing with the RSA in 1984, Section 12 of
the former Rent Stabilization Code allowed
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the owner to file for late enrollment.
In response to the owner's petition, the tenant contends in
substance that the owner was required to enroll the subject
premises with the RSA from the date he acquired the building
until April 1, 1984, but failed to do so, and therefore, the
status of the apartment changed to rent control on February 29,
1984; the owner did not file an application for late enrollment
with the RSA; the owner had not submitted any competent proof
that either Robert Liberman as owner or the subject apartment was
ever enrolled with the RSA; and the issue is not whether the
premises was continuously enrolled with the RSA since 1969, but
rather whether Robert Liberman had registered with the RSA as the
owner and whether the subject apartment was properly registered
as a rent stabilized unit.
In rebuttal, the owner contends in substance that if the prior
Code was still in effect and was applied consistently, the owner
would have the right to enroll late in the RSA retroactive to
1984; the only issue in the instant proceeding is whether the
subject premises was continuously enrolled in the RSA since 1969;
the tenants are confusing enrollment in the RSA with the
stricter requirements of filing a multiple dwelling registration
(MDR); the owner has submitted ample evidence to prove the
enrollment of the subject premises with the RSA since 1969; the
courts and the Commissioner have repeatedly held that the
Administrator has the obligation to search the DHCR's own records
prior to any determination; Section 18 of the Omnibus Housing Act
expressly provided that the RSA enrollment records be turned
owner to DHCR as of April 1, 1984; and DHCR has completely
ignored the owner's FOIL request so at the very least it would be
expected that the RSA enrollment records be reviewed by the
Administrator.
The Commissioner is of the opinion that this proceeding must be
remanded for further consideration.
A review of the record in the instant case indicates that the
owner has submitted substantial and persuasive evidence of the
subject apartment's continuous enrollment in the RSA since 1969,
including a letter from the RSA dated April 13, 1988 confirming
the above-mentioned enrollment, the owner's June 17, 1980 letter
showing a dues payment to RSA; and the RSA transfer of ownership
form. Contrary to the tenant's assertion in response to the
owner's petition, the determinant issue in this case IS whether
the subject premises was continuously enrolled with the RSA since
1969. Based on the foregoing, the Commissioner finds that the
owner was a member in good standing of the RSA prior to April 1,
1984, and that the Administrator erred by placing the subject
apartment under rent control. Accordingly, this matter must be
remanded to the District Rent Administrator to determine the
lawful stabilization rents for the subject apartment from the
base rent date of June 30, 1974 and to determine if there has
been a rent overcharge paid by the tenant.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is, granted
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to the extent of remanding this proceeding to the District Rent
Administrator for further processing in accordance with this
order and opinion. The District Rent Administrator's order of
January 14, 1991 is hereby revoked. Any arrears owed by the
tenant as a result of this order may be paid by the tenantto the
owner in equal monthly installments over the course of the next
six months.
ISSUED:
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ELLIOT SANDER
Deputy Commissioner
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