DOCKET NO.:  GB 220001-RT
                              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 6610
     APPEAL OF                                 ADMINISTRATIVE REVIEW
                                           :   DOCKET NO. GB 220001-RT
           FRANK INCONIGLIOS,                  DISTRICT RENT ADMINISTRATOR'S
                                           :   DOCKET NOS. EI 220007-AD
                            PETITIONER                     
     --------------------------------------X            

            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

     On January 31, 1992, the above-named tenant filed a petition for 
     administrative review of an order issued on December 27, 1991 by the Rent 
     Administrator, concerning the housing accommodation known as Apartment 3-F, 
     2023 Stillwell Avenue, Brooklyn, New York.

     Subsequently, the subject owner filed a petition in the Supreme Court, in 
     the nature of an application for a writ of mandamus, requesting that a 
     determination of the tenant's administrative appeal be issued.

     No order has been issued upon the aforementioned administrative appeal to 
     date.

     The Commissioner has reviewed all of the evidence of the record and has 
     carefully considered that portion of the record relevant to the issues 
     raised by the petition for review.

     This proceeding was initiated by the subject owner filing an affidavit, 
     sworn to an April 26, 1990 (The caption of the affidavit states "Application 
     to File Decontrol By Reason of Owner Occupancy"), which stated that the 
     subject owner purchased the subject building from Steve Tumminia, on 
     December 31, 1986, and that Steve Tumminia purchased the subject building 
     from the subject tenant on or about February 20, 1985.  The affidavit also 
     stated that the subject apartment was owner-occupied prior to February 20, 
     1985.

     To the affidavit the subject owner attached, among other things, a copy of 
     the deed, entered into on December 17, 1984, between Steve Tumminia and the 
     subject tenant, that indicated that the subject tenant sold the subject 
     building to Steve Tumminia for $125,000.00.  Also attached to the affidavit 
     was a copy of a five-year lease for the subject apartment entered into 
     between the subject tenant and Steve Tumminia, commencing on March 1, 1985 
     and expiring on February 28, 1990, at a monthly rent of $300.00.

     On December 4, 1990, the Division of Housing and Community Renewal (DHCR) 
     mailed to the parties in this proceeding a "Notice of Commencement of 
     Administrative Proceeding," that stated that the Administrator was proposing 
     to determine that the subject apartment was not subject to the Rent and 
     Eviction Regulations, as the rent agency's records noted that the subject 
     apartment was previously owner-occupied, pursuant to Section 2200.2(f)(11) 
     of the Rent and Eviction Regulations.  The notice also stated that the 






          DOCKET NO.:  GB 220001-RT

     parties to the proceeding had twenty days from the above-mentioned date to 
     submit evidence to substantiate their respective claims.

     The tenant's response, dated December 12, 1990, asserted, among other 
     things, that he has continuously resided in the subject apartment since 
     1946; that he purchased the subject building in October, 1982 while 
     continuing to live in the subject apartment, and that two years later he 
     sold the subject building to Steve Tumminia.

     To his response the tenant attached a "Memorandum of Law" that asserted that 
     the subject apartment was rent controlled until the time that the subject 
     tenant purchased the building; that the subject tenant applied for and was 
     eligible for maximum base rent (MBR) increases for 1983 and 1984; that he 
     sold the building in December, 1984; that the subject tenant has continued 
     to reside in the subject building since selling the subject building; that 
     there must be a vacancy in the apartment in order for owner-occupancy 
     decontrol to apply; that the New York Court of Appeals has stated that the 
     purpose of owner-occupancy decontrol "was to assist owners of owner-occupied 
     apartments which became vacant after April 1, 1953 and, in addition, 'such 
     exemption was not to affect any tenant in possession' at the time that the 
     amendment went into effect"; that as the subject tenant was a tenant "at the 
     time that the law went into effect," then the owner-occupancy decontrol law 
     should not apply in this case; that only an owner-occupant can decontrol an 
     apartment, and not a later owner "when that owner did not himself occupy the 
     premises," and that the subject tenant did not lose his rent control status 
     by signing the aforementioned lease.

     On January 28, 1991 the subject owner submitted his "Memorandum of Law," 
     that asserted, among other things, that the tenant by occupying his 
     apartment as an owner automatically decontrolled his apartment; that there 
     is no requirement that a notice of decontrol be filed; that the tenant's  
     rent control status ended when he became an owner-occupant, and that the 
     court case that the subject tenant cited "described owners of fractional 
     interests, involuntary interests, and other unusual situations," and 
     therefore are not on point.  The owner further asserts that:


               Tenant was an owner in possession at the time of the 
               sale.  He was not a protected Tenant and was not a 
               member of the class intended to be protected, which 
               includes involuntary and fractional owners, or 
               shareholders in corporate owners.  Tenant was none of 
               the above.  He was an owner and his tenancy and right to 
               possession merged in his ownership of the fee.  He 
               cannot now have a resurrection of that status.


     On June 6, 1991 the subject tenant filed a reply to the owner's "Memorandum 
     of Law," that alleged, among other things, that in order for owner-occupancy 
     decontrol to occur "there must be first, a vacating of the housing 
     accommodations, and secondly, a rerenting," and that the subject premises 
     continued to be treated as rent controlled, as the 1983, 1984 and 1985 MBR 
     increases went into effect while the subject tenant owned the subject 
     building.
     In the order under review herein, the Administrator determined that the 
     subject apartment was not subject to the Rent and Eviction Regulations, 
     pursuant to Section 2200.2(f)(11) of the above-mentioned regulations, due to 
     owner-occupancy decontrol.


          DOCKET NO.:  GB 220001-RT


     The subject tenant's petition reiterates the facts that were set forth in 
     the proceeding before the Administrator.  The petition also asserts that the 
     subject tenant is elderly and is dependent on social security; that the 
     subject tenant cites various Court cases that allegedly hold that in order 
     to establish owner-occupancy decontrol there must be "in addition to owner 
     occupancy, a vacating of the space by the former owner occupant and a 
     rerenting" (See, Sanchez V. Yulke, 164 N.Y.S.2d 567); that the legislative 
     history of the owner-occupancy decontrol regulation provides that an actual 
     vacating would have to take place before the apartment would be 
     decontrolled; that "A later owner cannot invoke the privileges of owner- 
     occupancy when the owner did not himself occupy the premises," and that the 
     fact that the subject tenant signed a lease did not relinquish his status as 
     a rent controlled tenant, as any agreement by the tenant to waive the 
     benefit of any provisions of the rent law or regulations is void, pursuant 
     to Section 2200.15 of the Rent and Eviction Regulation.

     On March 30, 1992, the subject owner submitted his answer to the petition, 
     which asserts that the subject building consists of a "five-family dwelling 
     with a store"; that, based upon the representation of Steve Tumminia (the 
     prior owner) and the fact that the subject tenant had been the owner of the 
     subject building for several years, the subject owner believed that when he 
     purchased the subject building that the subject apartment was decontrolled; 
     that the tenant's petition should be dismissed for untimeliness, as the 
     Administrator's order was issued on December 27, 1991, and that the tenant's 
     petition received by the subject owner bears a receipt stamp from DHCR for 
     February 3, 1992, and that the issues raised in the tenant's petition "are 
     beyond the scope of review as fixed by Regulation 2529.6 of this Agency."

     To his answer the owner attaches, among other things, a copy of a 
     "Certificate of Occupancy Search," that notes that the subject building 
     contains five apartments, and a store, and a copy of the aforementioned deed 
     between the subject tenant and Steve Tumminia and a rider to the deed which 
     states:  "Sellers represent that premises described herein are a legal five 
     family dwelling house...."

     The owner also submits a "Memorandum of Law," that asserts, among other 
     things, that the subject apartment was decontrolled automatically "when the 
     tenant herein owner-occupied the apartment for the statutory period"; that 
     when the subject tenant sold the subject building to Steve Tumminia and 
     "executed a non-rent controlled form of lease... tenant became a free-market 
     tenant"; that Steven Tumminia and the subject owner relied upon the above- 
     mentioned lease in believing that the subject apartment was decontrolled; 
     that the owner states that "To permit the tenant who was an owner to claim 
     the benefits of the rent control law where his own action misrepresented his 
     status would be an abuse of the authority of this Agency," and that the 
     tenant's filing of maximum base rents "was of no consequence, but merely a 
     prudent self serving act by an owner in the event the apartment by statute 
     would again come under control or to increase the rent roll in the event of 
     sale or was merely an error."







          DOCKET NO.:  GB 220001-RT


     After careful consider, the Commissioner is of the opinion that the tenant's 
     petition should be denied.

     The Commissioner notes that the envelope in which the tenant's petition was 
     mailed in has a U.S. Postal Service postmark of January 31, 1992, which is 
     less than thirty-five days after the issuance date of the order under review 
     herein.  Accordingly, the Commissioner finds that the tenant's petition was 
     filed timely.

     The subject owner's assertion that the issues raised in the tenant's 
     petition are beyond the scope of the Commissioner's review is without merit, 
     as the Commissioner finds that the issues raised in the tenant's petition 
     were raised in the proceeding before the Administrator.

     The Commissioner further notes that it is a long established policy followed 
     by the rent agency and the predecessor agency of the Division of Housing and 
     Community Renewal in administrating the various statutes providing for the 
     regulation of housing that, as in this proceeding, when an owner-occupant 
     sells their title in the building, while still continuing to occupy their 
     apartment, it is the functional equivalent of their vacating that apartment.

     As it is undisputed by both parties to this proceeding that the subject 
     tenant was the owner of the subject building for two years, and that the 
     subject tenant sold his title in the subject building, the Commissioner 
     finds that the subject apartment has been decontrolled.

     The Commissioner is of the opinion that the Court cases cited by the subject 
     tenant pertaining to owner-occupancy decontrol involved individuals who 
     while maintaining the status of owner were only fractional or part owners, 
     and who elected to remain in possession in their apartment as rent paying 
     tenants.

     In this proceeding the record reflects that during the time that the subject 
     tenant was the owner of the subject building, the subject tenant and his 
     wife (who resided with the subject tenant) were the sole owners of the 
     building; that there were no exchanges of apartments between the subject 
     tenant and other tenants in the subject building; that there was no non- 
     resident owner in which the subject tenant could have paid rent to during 
     the subject tenant's ownership in the building; that the subject tenant's 
     ownership in the subject building was voluntary and did not derive from an 
     inheritance, and that the subject tenant voluntarily sold his title in the 
     subject building and entered into a five-year non-rent control lease with 
     the purchaser of the subject building.

     Accordingly, the Commissioner is of the opinion that the facts in the Court 
     cases cited by the subject tenant are not consist with the above-mentioned 
     facts in this proceeding, and therefore those cases are not applicable to 
     this proceeding.

     The Commissioner finds that the filing of a decontrol report is not a 
     condition precedent to the decontrol of the subject apartment, and the fact 
     that there has not been a decontrol report filed is a mere procedural defect 
     which does not prevent the subject apartment from being decontrolled.




          DOCKET NO.:  GB 220001-RT

     The Commissioner further finds that the subject apartment automatically 
     became decontrolled when the subject tenant sold his title in the building, 
     as that was the functional equivalent of vacating the subject apartment.

     The Commissioner is of the opinion that the age or income of the subject 
     tenant does not prevent the subject apartment from becoming decontrolled 
     where, as in this proceeding, the subject tenant occupied the subject 
     apartment as an owner for the prerequisite time period, pursuant to the Rent 
     and Eviction Regulations, and then sold the title in the building.

     The Commissioner is also of the opinion that the subject tenant's assertion 
     that "a later owner cannot invoke the privileges of owner-occupancy when 
     that owner did not himself occupy the premises," is not the rent agency's 
     policy nor is it case law.

     Accordingly, the Commissioner finds that the tenant's petition should be 
     denied.

     The record reflects that the subject building contains fewer than six units.  
     Accordingly, the Commissioner finds that the subject apartment is not 
     subject to rent regulations pursuant to Section 2520.11(d) of the Rent 
     Stabilization Code, and that the rent agency does not have jurisdiction to 
     determine the rent of the subject apartment.

     Accordingly, the Commissioner finds that the issue of the aforementioned 
     five-year lease is moot.

     THEREFORE, in accordance with the provisions of the Rent and Eviction 
     Regulations for New York City, it is

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

     ISSUED:

        
                                                                               
                                                      JOSEPH D'AGOSTA
                                                 Acting Deputy Commissioner




    

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