STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X SJR No. 6465
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. GC410307RT
: DISTRICT RENT OFFICE
Helen Greco, DOCKET NO. L3112500RT
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On March 10, 1992, the above-named tenant filed a petition for
administrative review of an order issued on February 5, 1992, by a Rent
Administrator concerning the housing accommodations known as 2109
Broadway, New York, New York, Apartment No. 13-18, wherein the Rent
Administrator determined that the owner had not overcharged the tenant.
Subsequently, and after more than ninety days had elapsed from the time
she had filed her petition for administrative review, the tenant deemed
her petition as having been denied, and sought judicial review in the
Supreme Court of the State of New York pursuant to Article 78 of the
Civil Practice Law and Rules.
By court order dated October 16, 1992 the petition for administrative
review was remanded to the Division of Housing and Community Renewal
(DHCR) for a determination on the merits.
This proceeding was commenced by the filing of an overcharge complaint
and a fair market rent appeal on March 26, 1984, and both complaints
were processed under the same docket number. The tenant stated that she
had occupied the premises on October 1, 1981 at a rental of $2,300 per
month and that she was currently paying $2,403.67 per month. The tenant
attached a copy of her initial lease with her complaint.
DHCR served the owner with a copy of the tenant's complaints and
requested information for processing the fair market rent appeal.
In response the owner asserted that the subject building was within the
jurisdiction of the Hotel Code at the time the tenant filed her fair
market rent appeal. In August of 1984 the premises was reclassified as
an apartment building and became subject to the Rent Stabilization Law.
The owner concluded that the tenant was not entitled to a fair market
The Rent Administrator continued the processing of this case as an
Subsequent submissions by the tenant addressed the issues in the rent
overcharge complaint more specifically and in greater detail. The
tenant asserted that the prior tenants (Starr & Bukowski) were paying a
frozen monthly rental of $650.00 pursuant to a variety of orders issued
by the New York City Conciliation and Appeals Board (CAB), the agency
formerly charged with enforcing the Rent Stabilization Law and Code.
The tenant alleged that she was entitled to a continuation of this
frozen rental figure of $650.00 per month and an even further reduction
based on a diminution of hotel services. The tenant stated that the
owner had attempted to use the provisions of Section 20(D) of the (old)
Hotel Code to overcharge her. Section 20(D) permitted an owner to
charge a free market rent where the dwelling unit was voluntarily
vacated by a tenant. The section went on to describe a voluntary
vacancy as one in which the tenant was neither evicted nor received a
request in writing to vacate the accommodations.
In support of her allegations, the tenant submitted, among other things,
a copy of a written request from the owner to Starr and Bukowski to
surrender the premises dated January 31, 1981, a copy of a notice of
petition of non-payment dated February 4, 1981, and a copy of a decision
granting a judgment of possession to the owner dated April 28, 1981.
A subsequent submission by the owner requested that this proceeding be
delayed because of pending litigation concerning the subject building.
Among the pending issues, the owner listed reclassification, eligibility
for rent rollbacks, reductions for diminution of services, and lease
renewals. In the alternative, the owner asserted that no overcharges
had been collected because the owner of a hotel could charge a free
market rent after a vacancy. Finally, the owner asserted that this
tenant was not entitled to a rent reduction based on a decrease in
Another supplemental submission from the owner responded to DHCR's
inquiry concerning the registration of the subject apartment and
presented a more detailed response to the tenant's allegation that the
prior tenants had been evicted. The owner alleged, among other things,
that the prior legal tenants (Starr & Bukowski) were not in occupancy of
the subject apartment prior to the complainant-tenant and that the prior
occupant was one Joe Morrocco who was not a listed tenant. The owner
claimed that the prior legal tenant had abandoned the subject apartment.
The owner noted that the alleged prior occupant was not a party to any
eviction proceeding and had voluntarily vacated the premises. To
support these allegations, the owner submitted an affidavit from an "on-
site property manager" in which she stated that since 1978 she had never
seen Starr or Bukowski and the person she knew to be occupying the
subject apartment turned out to be one Joe Morrocco. Also submitted was
a Stipulation of Settlement between the owner and tenants wherein many
of the tenants of the subject building agreed to voluntarily vacate
their apartments. One of the signatories to this agreement was Mr.
In the order here under review, the Administrator determined that the
initial rent, stated by the Administrator to be $2,403.67, was lawful in
accordance with Section 3(S) of the Amended Hotel Code. This
determination was based on the Administrator's conclusion that the prior
legal tenants had abandoned the subject apartment and the prior occupant
of the subject apartment had voluntarily vacated.
In her petition for administrative review, the tenant urges revocation
of the Administrator's order. First, the tenant alleges a denial of due
process because she was never served with a copy of the owner's answer
to the complaint in the proceeding below. Second, the tenant states
that the Administrator erred by citing the Amended Hotel Code which was
not yet in effect when the tenant took occupancy and should have used
the old Hotel Code in reaching the determination. Third, the tenant
reasserts the claim made below that the prior tenants did not
voluntarily vacate the subject premises but were evicted. Finally, the
tenant claims at great length that both the Administrator and the DHCR,
in general, have displayed bias in favor of the owner. To support this
last claim the tenant states that nowhere in the pleadings is an initial
rent of $2,403.67 mentioned, nor is the Amended Hotel Code mentioned.
In its answer to the petition for administrative review, the owner
asserts that no errors of fact or law were made to warrant reversal of
the Administrator's order. The owner reasserts the allegation made
below that the prior tenants and prior occupant of the subject apartment
had voluntarily vacated the unit. Further, the owner maintains that the
Administrator correctly applied the law in effect at the time of the
issuance of the order and not the law in effect at the time of the
tenant's occupancy of the subject apartment. The owner cited case law
to support this claim. Section 3(S) of the Amended Hotel Code requires
an actual eviction and eliminates the request in writing to vacate as a
bar to voluntariness. In the alternative, the owner asserts that under
both the old Hotel Code and the Amended Hotel Code it was entitled to
charge a free market rent and that under either law the prior tenants or
occupant had voluntarily vacated the subject apartment. The owner
asserts that the eviction was simply a "ministerial" task. The owner
argues that if a tenant abandons an apartment within the lease period,
the eviction proceeding becomes a "ministerial" task for purposes of
rerenting the unit and protecting the owner from a possible future claim
by the abandoning tenant. Finally, the owner responded, at length, to
the tenant's allegations of undue influence and bias.
The tenant was served with a copy of the owner's answer to the petition
for administrative review and filed a reply. First, the tenant urges
DHCR not to accept the answer to the petition for administrative review
filed by the owner as being untimely.
The tenant goes on to address the legal issues involved. The tenant
asserts that the old Hotel Code should be applied. In the alternative,
she asserts that if DHCR is going to apply the law currently in effect,
it should be the Rent Stabilization Law. Also the tenant disputes the
owner's claim that there is a difference between a physical eviction and
one which is merely a "ministerial" task, and states that the statute
makes no such distinction.
Finally, the tenant addresses the factual issues involved. The factual
issue is the circumstances under which the subject apartment became
vacant. First, the tenant points to Civil Court testimony given by the
owner in a non-payment proceeding against the complainant-tenant. In
that proceeding the owner testified that the prior tenant was Starr and
Bukowski. Further the tenant asserts that the affidavit submitted by
the "on-site property manager" is a self-serving declaration of little
value because the affiant is also a part owner of the subject building.
Also, the tenant points to the Stipulation of Settlement to show alleged
inconsistencies in the owner's version of how the subject apartment was
vacated. Namely, the tenant notes that Starr and Bukowski were named in
the agreement and that Joe Morrocco was not named in the eviction
proceeding. Both these facts are cited for the purpose of showing that
the owner believed Starr and Bukowski to be in residence. Further, the
tenant asserts that, in accordance with the Stipulation of Settlement,
those tenants who voluntarily vacated the premises were required to
submit written notice to the owner and the owner has submitted no such
writing as evidence.
An alternative fact pattern is proposed by the tenant even if it is
concluded that Starr and Bukowski abandoned the subject apartment.
Namely, the tenant presents a ledger sheet which shows that the owner
billed Starr & Bukowski an illegally inflated rental of $843.42 for June
of 1981. The tenant asserts that if an abandonment took place it was
possibly as a result of the illegal rent. Accordingly, this type of
abandonment could hardly be declared voluntary.
After careful consideration, the Commissioner is of the opinion that
this petition should be denied.
The Commissioner is of the opinion that all parties' due process rights
have been protected. To insure these rights every effort had been made
to serve all parties with all of the documents to which they are
entitled and to fully consider all of the pleadings submitted. It is
within the Commissioner's discretion to consider supplemental pleadings
filed after their due date. In this case all submissions of both
parties will be fully considered.
The Commissioner finds that the decision in this case is not dependent
on which version of the Hotel Code is applicable. Both parties
acknowledge that a judgment of possession to the owner was made by the
Civil Court with regard to the subject apartment in 1981. Accordingly,
a determination of the voluntary nature of the vacating the subject
apartment is necessary, and the analysis would be identical under either
version of the Code. Clearly, the tenant's assertion that the
applicable law in this case should be the Rent Stabilization Law is
without merit. The Rent Stabilization Law does not address the issue of
a vacancy occurring in a hotel.
The Commissioner finds that the evidence in the record establishes that
the subject apartment was voluntarily vacated within the meaning and
intent of both the old Hotel Code and the Amended Hotel Code and that
the owner was entitled to charge the complainant-tenant an
unchallengeable free market rent.
The owner has produced sufficient credible evidence to support its claim
that the legal tenants (Starr and Bukowski) had abandoned the subject
unit. The record indicates that 1) Starr and Bukowski were never
involved in any proceeding of any kind; 2) Although Starr and Bukowski
were named in the Stipulation of Settlement, they did not sign the
document and were not involved in the Stipulation of Settlement in any
way; 3) They never appeared in the Civil Court non-payment proceeding
and were judged to be in default; 4) In the non-payment proceeding Starr
and Bukowski had to be served by mail and were not personally served; 5)
The record contains no checks or any documentation signed by Starr and
Bukowski. The Commissioner finds that the affidavit of the "on-site
property manager" is probative even if the weight afforded to it is
reduced by her proprietary interest in the subject building. As a
totality, the evidence points to a conclusion that the legal tenants had
abandoned the subject apartment well before the unit became vacant.
Further, the evidence in the record clearly supports the owner's claim
that the occupant of the subject apartment immediately preceding the
vacancy was Joe Morrocco. The fact that Mr. Morrocco signed the
Stipulation of Settlement and the affidavit of the "on-site property
manager" support this claim. The tenant has produced no documentation
to dispute Mr. Morrocco's occupancy of the subject apartment.
Regarding the Civil Court testimony given by the owner in the non-
payment proceeding against the complainant-tenant, the owner did state
in that testimony that the previous tenants were Starr and Bukowski.
However, later in the same testimony, the owner responded to a question
Q. And they both resided there together before she [the
complainant tenant] did?
A I don't know. That was the name on the lease.
Clearly, the owner was testifying from records and had no personal
knowledge of the factual circumstances surrounding the occupancy of the
subject apartment at the time in question.
Finally, the tenant's attempt to show that the subject apartment was not
voluntarily vacated is not persuasive. The tenant's allegations of
inconsistencies in the owner's version of the facts are not
substantiated by the record and the remainder of the tenant's
allegations are merely speculative.
Accordingly, the Commissioner concludes that the subject unit was
voluntarily vacated within the meaning of both the old Hotel Code and
the Amended Hotel Code and that the non-payment proceeding was in fact
undertaken for purposes of rerenting the unit and protection from
possible future claims by the prior legal tenants rather than to seek
the physical eviction of the those tenants who had already abandoned the
However, the Administrator's order must be modified to correct the
incorrect statement of the tenant's initial rent contained therein. The
tenant's initial rent is stated to be $2,300.00.
THEREFORE, in accordance with the Rent Stabilization Law and Code and
the Hotel Code, it is
ORDERED, that this petition for administrative review be, and the same
hereby is, denied, and the Administrator's order be, and the same hereby
is, affirmed but modified as noted above.
JOSEPH A. D'AGOSTA