DHCR Decisions
DOCKET NO.: FD830355RO
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. 6590 (6406)
APPEAL OF ADMINISTRATIVE REVIEW
: DOCKET NO. FD830355RO
PINHEIRO REALTY CO., DRO DOCKET NO. FA930001UC
PETITIONER : Tenants: various
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW UPON REMIT
This Order and Opinion is issued after an Order of the Supreme Court, County
of Westchester, Index Number 08605/92, Justice Carey, dated June 30, 1993,
which ordered remit of an Article 78 Proceeding directing the Division to
reconsider its former Order and Opinion issued on September 21, 1992, upon
which the Court proceeding was based. The September 21, 1992 order was
explicitly annulled by the Court.
The September 21, 1992 Order itself was 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 that court proceeding had been
based.
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 the
Emergency Tenant Protection Act (ETPA) should be "denied on the basis that
there is inconclusive evidence that on July 1, 1974, the date on which ETPA
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 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
DOCKET NO.: FD830355RO
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 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, the Division served the owner with a copy of the
tenant's submission, including the document from the Department of
Assessment. In response, 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.
DOCKET NO.: FD830355RO
On September 21, 1992 the Commissioner denied the owner's petition without
prejudice to the owner's right to refile its application based on new
evidence.
In Justice Carey's June 30, 1993 Order remitting this proceeding "for
reevaluation of petitioner's 'PAR' in a manner consisted herewith" each
allegation and each item of evidence offered in opposition to the owner's
application was discussed in detail. Each was found by Justice Carey to be
insufficient.
For example, regarding the owner certification of service, the Court stated
that the submitted "form appears to embody the owner's belief (as of the date
he signed it) that ETPA applied to the subject building." But the Court
concluded that "members of the citizenry do not dictate the applicability of
laws to them merely by believing that those laws do or do not apply or by
acting on such beliefs." Regarding the notation "6 controlled units 9/17/75"
on the City of Yonkers Tax/Assessment form, the Court stated "it may not be
considered as evidence...if it is without demonstrable probative value."
Noting that the notation "may well have resulted from conjecture based upon
information that the writer merely heard," the Court found it was not the
"clearly trustworthy and probative" type of hearsay evidence that could be
considered, but rather was a "cryptic, unattributed, abbreviation-laden
notation" used "as evidence of acts as they may have existed some seventeen
years prior to the proceeding below," and therefore not subject to
consideration. (Emphasis in original, citations omitted.)
The Court went on to find that, based on the record as a whole, "there was no
'reasonable fulcrum of support in the record' for a finding that the evidence
below was in conflict." In addition, the court stated the principle that
"[i]n assessing the rationality of a determination, 'insufficient evidence
is, in the eyes of the law, no evidence.'" [Citations omitted.]
Accordingly, in reevaluating the petition herein the Commissioner is
constrained to treat the owner's application as if it were unopposed by any
evidence. Hence, the Administrator's order finding that the evidence was in
conflict is hereby revoked and the owner's application for a determination
that the subject building is exempt from ETPA is hereby granted based on the
above-described evidence submitted by the owner to the Administrator as well
as the Division inspection. The Commissioner hereby finds that the owner's
submissions and the inspection constitute substantial evidence in support of
the owner's application.
THEREFORE, in accordance with the Emergency Tenant Protection Act and
Regulations, it is
ORDERED, that this petition be, and the same hereby is, granted on remit and
the Rent Administrator's order be, and the same hereby is, revoked, and the
owner's application for a determination that the subject building is not
covered by ETPA be, and the same hereby is, granted.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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