ADM. REVIEW DOCKET NO. FL220077RO
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 S.J.R. NO. 7233
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. FL220077RO
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO. FB220014RP
DARBY TOWNSEND,
PETITIONER
------------------------------------X
ORDER AND OPINION REMANDING PROCEEDING TO THE RENT ADMINISTRATOR
On December 20, 1991, the above-named landlord filed a
petition for administrative review of an order issued on November
22, 1991 by a Rent Administrator concerning the housing
accommodation known as Apartment 3F, 106 Pierrepont Street,
Brooklyn, New York.
Subsequently, the subject landlord filed a petition in the
Supreme Court, in the nature of an application for a writ of
mandamus, requesting that a determination of the landlord's
administrative appeal be issued.
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 petition for review.
On April 9, 1987, the rent agency issued an order under Docket
No. KC000685AD which determined that the subject tenant has resided
in the subject apartment since prior to June 30, 1971; that the
subject apartment is rent controlled, and that the subject
apartment's maximum rent should be $255.74 per month effective June
30, 1982.
On May 14, 1987, the subject landlord filed a petition for
administrative review of the above-mentioned order.
ADM. REVIEW DOCKET NO. FL220077RO
The Commissioner issued an order on February 14, 1991 under
Docket No. BE220411RO which remanded the proceeding to the Rent
Administrator to determine the issues raised by the subject
landlord. In the above-mentioned Commissioner's order, the
Commissioner ordered that the Administrator's order, issued under
Docket No. KC000685AD, remain in "full force and effect until a new
order is issued on remand."
On October 16, 1991, the Administrator mailed to the parties
a notice which stated, among other things, that: "The owner claims
that the subject premises is not subject to the Regulations due to
a conversion of the premises after May 1, 1950 under Section 11
(now known as Section 2200.9 of the Rent and Eviction Regulations).
Both the owner and the tenant are to submit proof to substantiate
their claim."
Also on October 16, 1991, the Administrator mailed a notice to
the subject landlord directing him to submit to the rent agency
copies of all Certificates of Occupancy (C. of O.) for the subject
building, copies of all "Altered Building Applications," and to
show proof as to when the subject building was constructed.
On November 6, 1991, the subject landlord submitted to the
rent agency, among other things, the following:
1) A copy of an application to alter
the subject building filed with
the New York City's Department of
Housing and Buildings (the
predecessor agency to the City's
Department of Buildings), under
Application Number Alt.207/49, which
noted that the subject building
contained seven apartments; that
the first floor had one apartment
containing four rooms; that the
landlord, among other things,
proposed to change the first floor
of the subject building from
containing one apartment to two
apartments; that the landlord
proposed that the two apartments
on the first floor would still have
a total of four rooms, and that the
landlord proposed to change the
number of apartments in the subject
building from seven to eight
apartments;
2) A copy of an C. of O. apparently
issued in 1951 which noted that the
ADM. REVIEW DOCKET NO. FL220077RO
subject building has four stories
containing two apartments on each
floor, for a total of eight
apartments;
3) A copy of an application to alter
the subject building filed with
the Department of Buildings, under
Application Number Alt. 12/79,
which proposed to reduce the
subject building's occupancy by
combining the first and second
floor into one duplex apartment,
and
4) A copy of the subject building's
C. of O., dated February 27, 1990,
which noted that the first and
second stories have been converted
into one duplex apartment, and that
the subject building contained five
apartments.
In the order under review herein, the Administrator determined
that the rent agency's order issued under Docket No. KC000685AD
should be affirmed, and that the subject apartment's maximum rent
should be $255.74 per month effective June 30, 1982. Furthermore,
in the order the Administrator stated that: "The Rent Administrator
determines that the extent of the work completed does not
constitute a substantial rehabilitation. Therefore, the subject
premises remains subject to the Rent Stabilization Code."
In his petition the subject landlord states that: "The record
in this matter clearly reflects a conversion between 1946 and 1950.
As such, the premises would have been decontrolled automatically.
Thus, they would not be subject to control, but only rent
stabilization under the ETPA of 1974. A finding of rent control is
not warranted."
In the tenant's answer she asserts, among other things, that
she has continuously resided in the subject apartment since August,
1967.
After careful consideration, the Commissioner finds that this
proceeding should be remanded to the Administrator for further
processing.
The relevant rent regulation in this proceeding is Section
2200.9(a)(1) of the City Rent and Eviction Regulations which states
in part that:
ADM. REVIEW DOCKET NO. FL220077RO
Upon application of the landlord, the
administrator shall issue an order
decontrolling additional housing
accommodations, other than rooming
house accommodations, resulting from
conversion of housing accommodations
on or after May 1, 1950, if there has
been a structural change involving
substantial alterations or remodeling
and such change has resulted in
additional housing accommodations
consisting of self-contained family
units....
Pursuant to the aforementioned rent regulation, the issuance
of a decontrol order by the rent agency is warranted when the
conversion of the subject building results in additional housing
accommodations consisting of "self-contained family units" which
exceeds the total number of housing accommodations that existed
before the conversion of the subject building.
The record reflects that prior to the approval of the
application filed with the aforementioned Department of Housing and
Buildings, under Application Number Alt.207/49, the subject
building contained seven apartments.
The landlord claims the housing accommodations in question are
subject to the Rent Stabilization Law rather than City Rent
Control, based on a conversion allegedly ocurring between 1946 and
1950 and resuling in decontrol under applicble Rent Law and
Regulations provisions. The burden of proof is on the landlord to
establish that such a conversion occurred; that it resulted in
additional housing accommodations, qualifying as such at the time
the conversion occurred; and that such conversion occurred at a
time when it met the standards for decontrol set by the then
applicable statutory provisions and administrative regulations.
Based upon the record, the Commissioner finds that it is not
clear whether the Administrator determined the issue of whether the
subject building contained more than seven self-contained family
units after the initial conversion of the subject building.
In the order under review herein, the Administrator affirmed
the order issued under Docket No. KC000685AD, which had determined
that the subject apartment is rent controlled; but the
Administrator also stated that "the subject premises remains
subject to the Rent Stabilization Code." The Commissioner is
accordingly of the opinion that the Administrator's determination,
ADM. REVIEW DOCKET NO. FL220077RO
as it pertains to the subject apartment's rental status, resulted
in two inconsistent decisions.
As noted above, the Administrator's order issued under Docket
No. KC000685AD determined that the subject apartment is rent
controlled. The Commissioner notes that the aforementioned
Commissioner's order issued under Docket No. BE220411RO ordered
that the Administrator's determination in Docket No. KC000685AD
remain in "full force and effect until a new order is issued on
remand." Accordingly, the Commissioner finds that the
Administrator's statement,in the order under review herein, which
stated that "the subject premises remains subject to the Rent
Stabilization Code" (emphasis supplied by the Commissioner) is
inconsistent with the two aforementioned prior orders of the rent
agency.
Based upon the above-mentioned facts, the Commissioner finds
that the proceeding should be remanded to the Administrator for an
administrative determination, pursuant to Section 2202.22 of the
City Rent and Eviction Regulations, to reconsider the issues
pertaining to the subject building's rental status and, if
applicable, determine the subject apartment's legal rent.
In the remand proceeding, the Commissioner is of the opinion
that the Administrator should give the parties to this proceeding
an opportunity to submit evidence pertaining to the issues of the
rental status of the subject apartment, and that such evidence
should include the number of self-contained family units contained
in the subject building subsequent to the alleged initial
conversion.
Specifically, the Administrator should determine whether the
subject apartment is rent controlled or rent stabilized. After
such determination is made the Administrator should consider the
maximum legal rent of the apartment. If, because of the past
confusion as to the status of the apartment, that is not known, is
in doubt or in dispute the maximum legal rent should be established
or determined, as of the date of the tenant's first occupancy, and
updated if necessary.
Based upon the aforementioned inconsistent decisions in the
Administrator's order under review herein, the Commissioner finds
that the order issued under Docket No. FB220014RP should be
revoked.
The Commissioner further finds that the Administrator's order
issued on April 9, 1987 under Docket No. KC000685AD should remain
in full force and effect until a new order is issued on remand.
ADM. REVIEW DOCKET NO. FL220077RO
THEREFORE, in accordance with the City Rent and Rehabilitation
Law and the Rent and Eviction Regulations, it is
ORDERED, that this proceeding shall be remanded to the
Administrator for an administrative determination to reconsider the
issues pertaining to the rental status of the subject apartment and
the subject apartment's legal rent; and it is
FURTHER ORDERED, that the Administrator's order, issued under
Docket No. FB220014RP, be, and the same hereby is revoked; and it
is
FURTHER ORDERED, that the subject apartment's maximum rent
effective June 30, 1982 shall be $255.74 per month, until a new
order is issued on remand.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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