Adm. Rev. Docket No.: GH920214RO
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 6819
APPEAL OF
ADMINISTRATIVE REVIEW
DOCKET NOS.: GH920214RO
STEPHEN P. GLENNON
DRO DOCKET NO.: GE910004OE
PETITIONER TENANT: C. STEPHEN SCHMITT
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioner-landlord timely filed a Petition for
Administrative Review (PAR) against an order issued on July 17,
1992, by the Rent Administrator at 55 Church Street, White Plains,
New York concerning housing accommodations known as Apartment 3A at
14 N. Chatsworth Avenue, Larchmont (the Commissioner notes here
that the mailing address for this apartment is, apparently,
"Larchmont", but that the apartment is located within the Town of
Mamaroneck), New York, wherein the Administrator determined that
the tenant was protected under the ETPA.
Subsequently, the landlord filed a Petition in the Supreme Court,
Westchester County, under Article 78 of the New York Civil Practice
Law and Rules, in the nature of an application seeking judicial
review of the deemed denial of the landlord's PAR. Thereafter,
pursuant to a Stipulation entered into between the Division and the
landlord, the matter was remitted to the Commissioner.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the evidence relevant to
the issues raised in the administrative appeal.
The issue in this proceeding is whether, under circumstances
wherein the landlord knew or should have known the identity of the
occupant of an apartment, a landlord can claim that an occupant
Adm. Rev. Docket No.: GH920214RO
from whom the landlord has accepted rent for over three years is
not the legal tenant of the subject apartment and, therefore, is
not subject to the protections afforded tenant's under the ETPA?
The proceeding below was commenced by the tenant's complaint.
The tenant claimed, in substance, that the landlord was attempting
to evict the tenant contrary to applicable law.
The landlord responded, in substance, that this tenant is not the
lawful tenant under the ETPA and the regulations promulgated
thereunder.
In the appealed order, the Administrator found that since the
record showed that the tenant had paid the rent for the subject
apartment in his own name since as early as 1987, the landlord had
long since waived any objection he may have had to the tenant's
occupancy and, therefore, the tenant is entitled to the protections
afforded under the ETPA.
In his PAR the landlord, in substance, repeats the arguments he
offered below.
In his answer opposing the PAR, the tenant, in substance, reasserts
his entitlement to the protections afforded by the ETPA.
The Commissioner finds that the Administrator's order should be
affirmed.
The Commissioner notes that in the PAR the landlord alleges that he
bought the subject condominium apartment in July of 1986 in the
name of Jobs Lane Partners, as to which the landlord explains
"There was initially intended to be a partner, however, that
partner never actually participated and I took over the full
ownership in 1987."
The Commissioner further notes that the record shows that on or
about May 18, 1989, the landlord wrote to the tenant, at the
subject apartment, advising the tenant that Jobs Lane Partners had
been dissolved effective June 1, 1989 and requesting that all
future rent checks be made payable to the landlord and sent to the
landlord at his address in Connecticut.
Adm. Rev. Docket No.: GH920214RO
The Commissioner points out that this order and opinion is issued
without prejudice to the landlord's right to commence a proceeding
(following the established DHCR procedures and utilizing the
prescribed DHCR forms) to determine his claim of right to
possession for his own use. In that connection, the landlord is
reminded that if one seeks relief under the ETPA and the applicable
regulations, one may be well advised to comply
with the same, especially those relating to the registration
requirements for ETPA regulated apartments.
THEREFORE, pursuant to all of the applicable statutes and
regulations, 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 A. D'AGOSTA
Deputy Commissioner
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