Adm. Review Docket Nos.: HB220040RO & HI220099RO
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 SJR 7224
IN THE MATTER OF THE ADMINISTRATIVE
APPEALS OF ADMINISTRATIVE REVIEW
DOCKET NOS.: HB220040RO
& HI220099RO
REGINA FELTON,
DRO DOCKET NOS.:
GH220012AD & HC220002RK
TENANT: MARCELLA
PETITIONER GONZALES
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
On February 5, 1993, the above named petitioner-owner filed a
Petition for Administrative Review (PAR) against an order issued on
January 15, 1993, by the Rent Administrator at Gertz Plaza,
Jamaica, New York, under DRO Docket Number GH220012AD, concerning
housing accommodations known as the Basement apartment (and
sometimes in these proceedings also referred to as the first floor
apartment) at 310 Hicks Street, Brooklyn, New York; wherein the
Administrator determined that the subject apartment has been a rent
controlled apartment since the date of the initial occupancy
thereof by Marcella Gonzales (i.e. the widow of Jose Gonzales);
that said Marcella Gonzales is the tenant entitled to occupy said
apartment and that the maximum legal rent that could be charged for
said apartment, effective January 1, 1993 was $ 280.00 per month.
Administrative Review Docket Number HB220040RO has been assigned to
that PAR.
The owner also filed an application with the Administrator seeking
that the Administrator reconsider the order of January 15, 1993.
On March 5, 1993, the Administrator granted the owner's
application for reconsideration and reopened the order issued
January 15, 1993. Docket Number HC220002RK was assigned to the
proceeding under which the order of January 15, 1993 was
reconsidered.
On August 19, 1993, the Administrator issued an order, under
Docket Number HC220002RK wherein the order of January 15, 1993 was
affirmed.
Adm. Review Docket Nos.: HB220040RO & HI220099RO
On September 17, 1993, the petitioner-owner filed a PAR against the
order of August 19, 1993. Docket Number HI220099RO has been
assigned to that PAR.
Subsequently, the owner filed a Proceeding under Article 78 of the
New York Civil Practice Law and Rules in the Supreme Court, Kings
County, seeking judicial review as to the deemed denial of the said
PARs.
Thereafter, pursuant to an order of the Court, the matter was
remitted to the Division.
Upon remit, pursuant to the Court's order, the Division has
afforded the parties an opportunity to submit further arguments and
evidence.
Pursuant to 9NYCRR2208.1(c), the owner's two PARs are consolidated
herein.
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 these administrative appeals.
This proceeding was originally commenced upon the Division's
receipt of a letter dated July 7, 1992 from one of the tenant's
daughters, Martha Gonzales. In that letter, Martha stated that her
parents, Jose Gonzales, aged 89, and her mother, Marcella Gonzales,
aged 781, had been living in the Basement apartment at 310 Hicks
Street for the past twenty-two years; that the said building had
recently been sold; and that the new owner had sent her parents a
notice to terminate their tenancy as of August 1, 1992. Martha
also stated that she had discovered from the DHCR that the
apartment had never been registered. The letter went on to describe
the apartment as a garden apartment in a four family house. There
was submitted with the letter a copy of a letter from the
Consolidated Edison Company of New York to Jose Gonzales dated
December 12, 1991; a copy of the purchaser's portion of a money
order dated April 24, 1992 payable to Nicholas DePasquale for
$280.00, signed "J.Gonzales" and marked "310 Hicks Street, BK, NY,
Rent for May-92"; and a letter from New York Telephone to Jose
Gonzales dated December 13, 1991.
&Based on said letter, the Division commenced the proceeding
assigned Docket Number GH220012AD to determine the status of the
subject apartment; that is whether it is regulated and, if so, what
the maximum legal rent is.
Thereafter, through the various stages of these proceedings, the
parties have made various allegations and submitted documentary
evidence in an attempt to substantiate their allegations.
1 The Commissioner notes that Martha was off by one year as to
her mother's age. Her mother was 79 on July 7, 1992.
Adm. Review Docket Nos.: HB220040RO & HI220099RO
The owner has made multiple, sometimes inconsistent, allegations
with respect to the occupancy of the subject apartment and
building; as well as allegations concerning the respective places
of residence of some of the tenant's family members. The essence of
the owner's position, at first, was that the person seeking a
determination that she was the legal tenant was not Marcella
Gonzales, the widow of Jose Gonzales, but Marcella Gonzales, the
daughter of Jose Gonzales.2 The owner has also contended that Jose
Gonzales (and/or Marcella, mere) moved from the fourth floor
apartment of the subject building to the Basement apartment in
1983. The owner has also contended that at one point Jose and his
wife resided in the third floor apartment. Again, the owner has
alleged that the Gonzales's moved to the Basement apartment from
another apartment in the said building in or about 1989; and the
owner has also asserted that Marcella, fille, moved from the fourth
floor apartment in the subject building, terminating her telephone
service there on June 14, 1983, to Apt. 17G at 85 Livingston
Street, Brooklyn. Later in the proceedings, the owner attempted to
show that records pertaining to Jose Gonzales, who had died on July
22, 1992, were not the records which were being used to prove the
tenant's allegations but that records pertaining to Joseph Gonzales
(who, the owner asserted, resides in Queens and, from time to time,
has given his address as 310 Hicks Street) were the records that
were being so used. The owner has also alleged, without any
substantiation, that Consolidated Edison has records showing that
Jose Gonzales had used emergency medical equipment at the fourth
floor of the subject building.
The tenant, in substance, has alleged that she is the widow of Jose
Gonzales, and had resided in the basement apartment (the apartment
on the ground floor of the subject building) with her said husband
from August of 1970; that she has continued to reside in said
apartment after her husband's death; that Henrietta Gonzales
(deceased), Martha Gonzales, Marcella Gonzales and Joseph Gonzales
are her children; and that some of her children have, from time to
time used 310 Hicks Street as a mailing address for various
purposes as a matter of convenience to them. The tenant also states
that her failure to submit records as to her rent payments is due
to the fact that, as was customary for her generation, such matters
were left to her husband.
The Commissioner is of the opinion that there are only two
questions of fact upon which this matter turns. 1. Was Marcella
Gonzales (who is, now, the widow of Jose Gonzales) a tenant in
occupancy of the subject apartment as of June 29, 1971? 2. If so,
did she remain in occupancy from that time up to the time of the
2 Hereinafter Marcella Gonzales, the mother, the tenant of the
subject apartment, will be distinguished from her daughter,
Marcella Gonzales, by having the mother's first name followed by
the French word for mother, mere, and the daughter's first name
followed by the French word for daughter, fille.
Adm. Review Docket Nos.: HB220040RO & HI220099RO
issuance of the Administrator's determinations hereinbelow?
The Commissioner is, further, of the opinion that the record herein
contains substantial evidence proving that the answer to each of
these questions is in the affirmative; and, therefore, the
Commissioner is of the opinion that the administrative appeals
herein should be denied and the order of August 19, 1993 issued
under Docket Number HC220002RK (wherein the order of January 15,
1993 was affirmed), should be affirmed.
The Commissioner makes the following findings of fact based on
evidence submitted by the parties.
1. There is no issue but that the subject building was built
prior to January 1, 1947 and that it consists of four floors with
one apartment on each floor.
2. The tenant of the subject apartment is a woman who is now,
generally, known as Marcella Gonzales; who was born Marcelina
Iglesias in Spain on September 26, 1912; who married Jose Gonzales
at the church of St. Mary Magdalene De Pazzi in Philadelphia ,
Pennsylvania on January 11, 1930; who gave birth to a daughter
named Henrietta Gonzales on December 24, 1930 at Long Island
College Hospital while residing at 310 Hicks Street, Brooklyn, New
York; and who gave birth to a daughter named Marcella Gonzales on
March 14, 1934 at the same hospital while residing at 310 Hicks
Street. See the marriage certificate of Jose and Marcella Gonzales,
the Hospital and the New York City Department of Health birth
certificates for Henrietta Gonzales, the death certificate for Jose
Gonzales and the United States passport issued on March 15, 1979 to
Marcelina Gonzales, all of which were submitted under Docket No.
GH220012AD; and see the Hospital and the New York City Department
of Health birth certificates for Marcella Gonzales submitted under
Docket No. HB220040RO.
3. That Marcella, mere, received a medicare statement dated
August 28, 1991 addressed to her at the subject building and said
statement indicates, by the account number thereon (which account
number consists of Jose Gonzales's Social Security number followed
by a capital "B"), that Marcella, mere 's coverage derived from the
Social Security account of her spouse, Jose Gonzales; and that
Marcella, mere, received a letter from Blue Cross/Blue Shield dated
October 11, 1989, indicating, by the account number thereon, that
the medical insurance coverage provided the tenant under said plan
also derived from Jose Gonzales's Social Security account. See the
Medicare statement dated August 28, 1991 and the Blue Cross/Blue
Shield statement dated October 11, 1989, both submitted under
Docket Number HB220040RO.
4. That "J. Gonzales" had an account with the Brooklyn Union
Gas Company at the Basement apartment of the subject building from
Adm. Review Docket Nos.: HB220040RO & HI220099RO
August 10, 1970 and said account was active as of October 15, 1992;
that V. DiMare had an account with said Company at the 3rd Floor
apartment from January 1, 1960 through November 22, 1989; that M.
Santos had an account with said Company at the 2nd Floor apartment
from April 23, 1984 through September 23, 1991; and that M.
DiPasquali had an account with said Company at the 1st Floor
apartment3 from January 1, 1960 through December 9, 1991. See the
letter from the Brooklyn Union Gas Company dated October 15, 1992
submitted under Docket Number GH220012AD.
5. That the owner purchased this building from Ninfa
DePasquale, as the representative of the Estate of Vittina DiMare,
under a Contract of Sale that had a Rider dated March 27, 1992
wherein the owner agreed that the proposed purchase was subject to
the tenancy of "Gonzalez" at a rent of $ 275.00 per month
(described in said Rider as a month to month tenancy with no
security held by the former owner and no lease in effect). See the
Rider to said contract submitted under Docket Number GH220012AD.
6. That on February 5, 1983, J. "Gonzalez" whose address was
indicated as "310 Hicks St., Apt B" and whose telephone number was
indicated as U[8] L[5] 5-5317 purchased a "19 In Remot" from
Macy's. See the letter and receipt from Macy's submitted under
Docket Number GH220012AD.
7. That Jose Gonzales had telephone service at 310 Hicks
Street since December 12, 1968 under telephone number 855-5317 and
that current charges were billed to that telephone number on June
13, 1992. See the letter from the New York Telephone Company dated
December 13, 1991, and the New York Telephone Company bill dated
June 13, 1992 submitted under Docket Number GH220012AD.
8. That Jose Gonzales of 310 Hicks Street, 1st Floor has had
an account with the Consolidated Edison Company at said address
since August 10, 1970 and that charges were being billed to said
account as of July 7, 1992. See the letter from Consolidated Edison
Company dated December 12, 1991 and the bill from said Company
dated July 7, 1992 both submitted under Docket Number GH220012AD.
9. That mail postmarked June 14, 1972 and August 19, 1991 was
sent addressed to Marcella Gonzales at the subject building and two
pharmacy labels dated August 7, 1991 were addressed to Marcella
Gonzales at the subject building. See the copies of the three
envelopes, two bearing a June 14, 1972 postmark and one bearing an
August 19, 1991 postmark submitted under Docket Number GH220012AD;
and see the two labels from Barney's Pharmacy submitted under
Docket Number HB220040RO.
10. That on February 3, 1986, a United States passport was
3This letter referred to the various floors in the building by
the "European" method of denoting the floor above the street level
as the "first floor".
Adm. Review Docket Nos.: HB220040RO & HI220099RO
issued to a Marcella Gonzales whose date of birth was March 14,
1934 and whose appearance and signature are readily distinguishable
from those of Marcella mere, to whom a United States passport was
issued on March 15, 1979; that W-2 forms for 1983 and 1984 were
issued by La Mancha to Marcella fille of 85 Livingston Street,
whose Social Security number is different from that of her mother,
the tenant; that the New York Telephone Company residential
listings for Brooklyn for 1992-93 and the Talking Yellow Book
Telephone Directory for Brooklyn Heights/Park Slope both listed an
M. Gonzales at 85 Livingston Street with telephone number 875-5658
and a J. Gonzales at 310 Hicks Street with telephone number 855-
5317; that Marcella fille is co-owner of her apartment, 17G at 85
Livingston Street, with John P. Capobianco and that the Social
Security number on file with the Managing agent for 85 Livingston
Street for the owners of said Apartment 17G is not the Social
Security of the tenant or of her daughter Marcella; that Marcella
fille has medical insurance with GHI and her account number
corresponds to her own Social Security number. See passport issued
February 3, 1986, expiration date February 2, 1996; W-2 forms from
La Mancha for 1983 and 1984; letter dated January 26, 1993 from WPG
Residential, Inc. to Regina Felton; letter dated January 28, 1993
from WPG Residential, Inc. to Regina Felton; two GHI statements
dated October 6, 1989 and August 18, 1990, respectively, addressed
to Marcella Gonzales at 85 Livingston Street; the Social Security
card of Marcella, mere4, (all of which documents were submitted
under Docket Number HB220040RO); and the copies of the relevant
pages of the New York Telephone Company directory for Brooklyn and
the Talking Yellow Book directory submitted under Docket Number
HC220002RK.
11. That Marcella fille has registered to vote from her
address of 85 Livingston Street. See the copies the Board of
Elections sign-in sheets and correspondence submitted by the owner
under Docket Number HB220040RO.
12. That the tenant's son, Joseph Gonzales, was born on April
1, 1932; that he had been employed by the Chase Manhattan Bank;
that his Social Security number is different from Jose Gonzales's
Social Security Number; that Joseph had indicated, on a Chase
retirement information form dated December 23, 1987, that he
resided at 310 Hicks Street, that his telephone number was 855-
5317; and that he had no spouse; that in response to the owner's
inquiries, the Chase Manhattan Bank stated that it had no record of
a Jose Gonzales with a Social Security Number corresponding to that
on the death certificate of Jose Gonzales, but that it had a record
4The Commissioner notes that, consistently, the signature of
Marcella, mere, is readily distinguishable from that of her
daughter, Marcella's by virtue of the fact that the mother starts
"Gonzales" with a "G" that looks more like a large lower case "G"
than what is traditionally known in script as a capital "G", while
Marcella, fille, starts "Gonzales" with a traditional script
capital "G".
Adm. Review Docket Nos.: HB220040RO & HI220099RO
of a former employee, Joseph Gonzales of 310 Hicks Street who had
not, as of November 12, 1993, been reported as deceased and who had
started to receive retirement benefits on May 1, 1991; that the
owner submitted copies of sixteen checks drawn on Joseph Gonzales's
account at Chase Manhattan Bank which were signed by Marcella
fille; that there was a telephone directory listing for Joseph
Gonzales at an address in Woodside Queens indicating Joseph
Gonzales's telephone number was 476-3478. See Exhibits 8 through 13
annexed to the (undated) affirmation of Regina Felton containing
twenty-four numbered paragraphs, which was submitted upon remit
from the Court.
The Commissioner notes that the Division's staff has discovered no
record of the subject building's having been registered with the
United States Office of Price Administration during World War II or
thereafter.
The Commissioner finds that the main thrust of the owner's
challenge to the tenant's allegations rests on the following items
of evidence.
a) The owner argues that the tenant's inability to produce
proof of rent payments must provide the basis for a negative
inference. The Commissioner finds that this argument is without
merit in the light of the facts that, on the one hand, the owner
has neither claimed nor established any foundation for a claim that
she has any personal knowledge about the facts relating to this
tenancy either prior to her acquisition of the building, in the
middle of 1992, or thereafter; and, on the other hand, the owner
has failed to submit, or explain her failure to submit, any
evidence relating thereto from the prior owner or the prior owner's
personal representative. The Commissioner believes that, having
dealt directly with the prior owner's personal representative for
the purchase of the building, the owner was in a position to demand
whatever records may have been kept by the prior owner and/or her
5 The Commissioner notes that at paragraph 9 of the owner's
twenty-four paragraph affirmation, the owner asserts that the
decedent from whose Estate she purchased this building died in
1953. The Commissioner notes that in the State of New York a
personal representative of a decedent's estate is appointed by the
courts and is answerable to the courts for the management of the
estate's assets. The Commissioner would find it an unusual
situation, therefore, for a court appointed fiduciary, or
fiduciaries, who had managed property for thirty-nine years to
have no records as to the rents received and the tenants residing
Adm. Review Docket Nos.: HB220040RO & HI220099RO
personal representative relating to the tenant's status.5
b) The owner places a great deal of reliance on a document the
owner claims to have obtained from the New York Telephone Company6.
The Commissioner finds that said document, initially submitted
under Docket Number GH220012AD, is of highly questionable probative
value. This document appears, as best as it can be made out, to be
a printout of Telephone Company information relating to the account
of J. Gonzales at 310 Hicks Street. The Commissioner notes that the
copy of the printout submitted appears to be incomplete (with the
left side of the page cut off and part of the right side of the
page missing) and that the information on it is so sketchy and
abbreviated as to be incapable of comprehension without an
explanation. For example, the owner would have us read the
following as proving that the telephone service of J. Gonzales was
received at the fourth floor of the subject building up until June
14, 1983
"LOC FLR 4/DES NO LOC I 6-14-83".
The tenant asserts that said legend merely indicates that the
building contains four floors and that the location of the service
is not designated. Noting that the earliest date which appears on
this document, December 12, 1968, corresponds to the date the New
York Telephone Company letter of December 3, 1991 gives as the
starting date for Jose Gonzales's telephone service under 855-5317
(no telephone number appears on the printout the owner submitted),
the Commissioner finds that this printout probably does relate to
said service; but other than that, the Commissioner finds that
little else can be determined from looking at this document.
However, it does appear, as there are dates on the document which
occur later than June 14, 1983 (the most recent date appearing on
the document is May 13, 1991), that this document would not seem to
substantiate the owner's claim that Jose Gonzales's service at 310
Hicks Street was terminated on that date.
c) The owner contends that certain Brooklyn Federal Savings
Bank records for Marcella, fille, (Exhibit 6 annexed to the twenty-
four paragraph affirmation submitted by the owner) support the
owner's contention that Marcella, fille, moved into the subject
apartment after Jose Gonzales's death in June of 1992 and
thereafter has attempted to pass herself off as the legal tenant of
said apartment. The Commissioner notes that whereas the record
submitted for 1992 appears to be a readily recognizable document,
an IRS Form 1099, the document whereon the number 1991 appears is
not a readily identifiable document. The Commissioner further notes
that whereas what appear to be two bank account numbers appear on
each document, only one of the two numbers which appear on each
on said property.
6 The Commissioner notes that the tenant challenges the
authenticity of this document and the manner in which it was
obtained.
Adm. Review Docket Nos.: HB220040RO & HI220099RO
document match. Moreover, there is nothing in the record to show
when Marcella, fille, may have advised the Bank to change her
address on its records; that is, whether the change was made after
Jose Gonzales's death or several months prior thereto. In summary,
for what they are submitted to prove, said records are not
competent evidence.
The Commissioner further notes the following points which he
considered in reaching the determination herein.
i) The use by the tenant's grown children of the subject
apartment as a mailing address, for whatever reasons, does not
prove that any of them live there; especially since the owner has
submitted documentary evidence tending to show that the two
children who so used that address have long established residences
elsewhere.
ii) What is quite relevant, in the Commissioner's opinion, and
noticeably absent from the owner's evidence is proof that Marcella,
mere, lives anywhere other than the subject apartment; particularly
in view of the substantial body of evidence the tenant has
submitted to show that she and her late husband resided there since
at least 1970.
iii) The Commissioner finds that the Brooklyn Union Gas
Company letter dated October 15, 1992 is a significant piece of
evidence. It not only substantiates the tenant's residency in the
Basement apartment from 1970 on; it also rebuts the owner's
contentions that the tenant resided in the fourth floor apartment
and the third floor apartment at any time relevant herein.
iv) The Commissioner also notes, as to the owner's original
contention that Marcella fille, and not Marcella mere, is occupying
the subject apartment, that proof of said contention should have
been readily available from the personal observations of the owner
and/or those acting on the owner's behalf to make such
observations. Nothing resembling evidence of this nature was
submitted by the owner; merely the owner's assertion (with no
foundation as to who observed what, where and when) that the woman
in the apartment is too young to have been married in 1930.
v) In the absence of anything in the record to rebut the
tenant's statement that the listing of Jose Gonzales's address and
that of his spouse, Marcella Gonzales, as 301 Hicks Street in Jose
Gonzales's death certificate was an error that is in the process of
being corrected; in view of the fact that it was the tenant who
first submitted this document; and in view of the fact that the
owner has, for the most part, alleged that Jose Gonzales resided at
310 Hicks Street, the Commissioner finds that said listing is of no
significance to these proceedings.
Adm. Review Docket Nos.: HB220040RO & HI220099RO
vi) The Commissioner finds that the owner's objections to
certain of the tenant's submissions based on a claim that they were
7 Although there is no requirement that submissions be
verified, the Commissioner notes that the owner's submissions may
not have been properly verified. The New York Civil Practice Law
and Rules provides that an attorney, which the owner appears to be,
can affirm a statement and such a statement is acceptable as an
affidavit, but the Commissioner finds no authority for an
attorney's executing a verification without taking an oath before
one empowered to take oaths, such as a notary public. Nevertheless,
such a "verification" is what the owner has used in those of her
papers which purport to contain a verification.
Adm. Review Docket Nos.: HB220040RO & HI220099RO
not verified is without merit.7 The Commissioner also finds that
the owner's objection to the tenant's last submission as untimely
is without merit. The Court, in its remit order, provided for time
limitations for the owner's submissions and the time within which,
after the final submission, the Commissioner was to issue a
determination herein, but the Court set no such time limit for the
tenant's reply to the owner's post remit submission. Moreover, the
twenty day period specified in the Division's notice to the tenant,
under which the tenant was served with the owner's first post remit
submission, was not a strict time limitation. The notice provided
that if the tenant failed to respond to the Notice timely it "may
result in a determination based on the record as it is presently
constituted"(emphasis supplied); that is, absent the submission to
be made. Further, the Commissioner notes that the tenant's response
to that Notice was, essentially nothing more than a restatement of
the previously enunciated positions taken by the tenant throughout
these proceedings.
vii) In neither PAR did the owner challenge the
Administrator's finding as to the amount of the maximum legal rent.
THEREFORE, pursuant to all of the applicable laws and regulations,
it is
ORDERED, that these Petitions be, and the same hereby are denied;
that the order issued August 19, 1993 under Docket Number
HC220002RK (wherein the order issued January 15, 1993 under Docket
Number GH220012AD was affirmed) be, and the same hereby is
affirmed.
ISSUED:
Joseph A. D'Agosta
Deputy Commissioner
1A2D3D9HB220040.RO
STORECODEC.01060208034
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