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
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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
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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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