DOCKET NO.:  FD 830355-RO
                            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   
     IN THE MATTER OF THE ADMINISTRATIVE   :   SJR NO. 6406
     APPEAL OF                                 ADMINISTRATIVE REVIEW  
                                           :   DOCKET NO. FD 830355-RO          
          PINHEIRO REALTY CO.,      ,           DRO DOCKET NO. FA 930001-UC
                             PETITIONER    :   Tenants:  various
     --------------------------------------X   
                                                  

           ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

     This Order and Opinion is issued pursuant to a so-ordered stipulation in 
     the Supreme Court, County of Westchester, Index Number 08605/92, Justice 
     Carey, dated June 25, 1992, whereby the Division agreed to reconsider its 
     "deemed denial," upon which the court proceeding was based, and to issue an 
     order herein by September 24, 1992.

     On April 16, 1991, the above named petitioner-owner filed a Petition for 
     Administrative Review against an order issued on April 4, 1991, by the Rent 
     Administrator, 55 Church Street, White Plains, New York, concerning housing 
     accommodations known as various apartments, 171 Willow Street, Yonkers, New 
     York, wherein the Rent Administrator determined that the owner's 
     application for a determination that the subject building was not subject 
     to Rent Stabilization should be "denied on the basis that there is 
     inconclusive evidence that on July 1, 1974, the date in which the Emergency 
     Tenant Protection Act was adopted by the City of Yonkers, or any date 
     thereafter, the subject building contained fewer than six (6) dwelling 
     units."

     The issue in this appeal is whether the owner met its burden of proving 
     that the subject building is exempt from coverage under the Emergency 
     Tenant Protection Act (ETPA).

     The applicable section of the Tenant Protection Regulations (TPR) is 
     Section 2500.9(d).

     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.

     The owner commenced this proceeding on January 10, 1991 by filing an 
     application to determine whether the subject building was exempt from ETPA 
     coverage.  Attached to the application was an affidavit from the son of the 
     previous owner, stating that from 1950 to 1976 the building had had four 
     dwellings and one or two stores.  Also attached was a copy of a 1967 
     application by the prior owner to the Yonkers Department of Buildings to 
     make an alteration on the subject building.  The application described the 
     building as a four-family dwelling.

     In answer to the application, one tenant stated that the building was 







          DOCKET NO.:  FD 830355-RO

     subject to ETPA and had been registered as such.  The statements of the 
     owner were described as "self-serving" and the owner's proof was said to be 
     insufficient.  The tenant attached a copy of a form of the Yonkers 
     Department of Assessments and Taxation which describes the property as 
     having four apartments and a store in 1990 but which bears a notation 
     stating that on September 17, 1975 there were six apartments.  (A 
     staffperson for the Department of Assessments confirmed that this notation 
     appears on the original form on file in that office.)

     The record contains a copy of DHCR Form 7(a)(6-74), "Certification of 
     Maintenance of Services (Section 7(a) ETPA)" wherein the owner on June 8, 
     1979 certified, in part, that it was maintaining all services furnished on 
     May 29, 1974, the date ETPA became a law.  (This is apparently the 
     "registration" referred to by the tenant.)

     On January 29, 1991 the owner filed an answer form in which it stated that 
     the above certification had been filed in error, without knowledge of what 
     ETPA was and without the advice of counsel.

     On February 28, 1991 an inspection of the subject building was conducted.  
     The inspector found four apartments, five gas meters, five electric meters 
     and four mailboxes.

     In the order herein under review the Administrator "determined that there 
     appears to be conflicting information as to whether the building had or was 
     ever used as a six (6) Family Dwelling."

     Therefore the application was denied but the Administrator explicitly 
     stated the owner's right to refile for exemption from ETPA if and when it 
     could produce additional evidence to prove that the building should be 
     exempt.

     In this petition, the owner contends that the Rent Administrator's Order is 
     incorrect and should be modified because there was no evidence in the 
     record that the building had six or more units and furthermore no tenant 
     had even objected to the owner's application.  Accordingly, the evidence 
     was not "inconclusive" and the exemption should have been granted.  The 
     owner submitted no new evidence with its petition.

     Because the petition indicated that the owner was unaware of the tenant's 
     answer to the application, on July 13, 1992 and August 24, 1992 the 
     Division served a copy of the tenant's submission, including the document 
     from the Department of Assessment, on the owner  [On July 31, 1992 the 
     owner alleged there were no attachments to the July 13, 1992 notice.]  The 
     August 24, 1992 notice noted the court-imposed September 24, 1992 deadline 
     for the instant order to be issued and gave the owner fifteen days to 
     respond.  In a response dated August 28, 1992, the owner noted that the 
     Department of Assessments form indicated the building had four apartments.  
     However, the owner stated that it did not know the meaning of the notation 
     "6 apts. controlled September 17, 1975" on that form.

     The Commissioner is of the opinion that this petition should be denied.

     It is clear that there is inconclusive evidence on this issue.  
     Accordingly, it was proper for the Administrator to deny the application 
     without prejudice to the owner's right to refile at a later date based on 
     additional evidence.



          DOCKET NO.:  FD 830355-RO


     The owner's filing of a Certification of Maintenance of Services created a 
     presumption that the building was subject to ETPA.  The fact that the 
     building presently has only four dwelling units is not determinative.  If 
     there were six dwelling units on the base date, or anytime thereafter, the 
     building would remain subject to ETPA even when the number of dwelling 
     units was subsequently reduced to four.  The owner's allegation that it had 
     filed the Certificate by mistake is self-serving and not sufficient, 
     standing alone, to rebut the presumption.  The affidavit by the son of the 
     prior owner, even if factually correct, does not prove the building is not 
     stabilized.  [For example, if the building had six dwelling units in 1977 
     it would be stabilized even though the number of units was later reduced to 
     four.]   Furthermore, the Building Department application of 1967 
     indicating the building had four units is offset by the notation on the 
     Department of Assessments form stating there were six apartments on 
     September 17, 1975.  (If there were four dwelling units in 1967 and six 
     units in 1975 -- the latter date being after the base date -- the building 
     would be subject to ETPA even if the number of dwelling units was later 
     reduced to four.)

     Based on the foregoing the Commissioner finds no error in law or fact in 
     the Administrator's order.  The present order, by affirming the 
     Administrator's order leaves the owner's right to refile at a later date 
     based on new evidence intact.

     THEREFORE, in accordance with the Emergency Tenant Protection Act and 
     Regulations, it is 

     ORDERED, that this petition be, and the same hereby is, denied and the Rent 
     Administrator's order be, and the same hereby is, affirmed.

     ISSUED:



                                                                              
                                                    JOSEPH A. D'AGOSTA
                                                Acting Deputy Commissioner  

      




    

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