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





     ---------------------------------------X   
     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

     ---------------------------------------X   
                                                  

      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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