GC410307RT
                             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

      ------------------------------------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
                                            
                                                        

                            PETITIONER    : 
      ------------------------------------X                             

           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 
      rent appeal.

      The Rent Administrator continued the processing of this case as an 
      overcharge proceeding.

      Subsequent submissions by the tenant addressed the issues in the rent 
      overcharge complaint more specifically and in greater detail.  The 







          GC410307RT

      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 
      services.

      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. 
      Morrocco.

      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 


          GC410307RT

      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 







          GC410307RT

      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.


          GC410307RT


      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 
      as follows:

           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 
      subject apartment.

      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.

      ISSUED:

                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner





    

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