Docket No. HD420273RT
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: HD420273RT
George T. Tekulsky ADMINISTRATOR'S DOCKET
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On April 26, 1993, the above-named petitioner-tenant filed a
Petition for Administrative Review of an order issued on March 31,
1993, by the District Rent Administrator of the Gertz Plaza,
Jamaica, New York, concerning housing accommodations known as 215
West 98 Street, Apartment 8E, New York, New York.
The issue in this proceeding is whether the District Rent
Administrator's order issued was warranted.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issued raised by the administrative appeal.
This proceeding was commenced on December 20, 1991 by the owner's
filing of a Owner's Application For Increase of Maximum Rent
(increased occupancy), asserting that there is an additional
occupant in the apartment.
On March 31, 1993 the District Rent Administrator issued order
number FL420094OI granting an increase in the maximum rent for an
increase in occupancy.
The petitioner's children state, they are their Father's legal
trustees. (The subject tenant is blind.)
On October 20, 1992 the Rent Administrator requested the tenant to
submit proof that the present employees maintain their own
residences; proof of utility bills or a copy of their lease. Proof
Docket No. HD420273RT
of utility bills was submitted showing employees maintain their own
On appeal, the tenants trustees state, in substance that their
father George T. Tekulsky, is the sole occupant of apartment 8E.
Due to the tenants' advanced age (90) and his handicapped condition
the tenant requires round the clock care. He employs several
health care workers round the clock. All of the health care
workers maintain their own residence.
After a careful consideration of the entire evidence of the record,
the Commissioner is of the opinion that the appeal should be
Section 2202.6 of the Rent and Eviction Regulations States:
"The Administrator may grant an appropriate adjustment of
a maximum rent where he finds that there has been since
March 1, 1959, a subletting without written consent from
the landlord or an increase in the number of adult
occupant who are not members of the immediate family of
the tenant, and the landlord had not been compensated
there for by adjustment of the maximum rent by lease, or
by order of the Administrator pursuant to the State Act
of the Federal Act. Such adjustment shall be effective
only during the period of subletting or increase in the
number of occupants."
An Affidavit, submitted by the owner, that had been signed by the
tenant was dated July 1986. The tenant then stated that there was
one full time employee of his in permanent residence in the subject
apartment. This concession was made more than 5 years before the
owner's application for increase in maximum rent for increase in
occupancy was filed. (It should be noted that even if, at one
time, the tenant had an additional occupant as indicated in 1986,
the type of rental increase is collectible only so long as the
increased occupancy exists.)
The weight of the credible evidence of record is that none of the
three employee live or sleep at the premises. The burden of proof
is on the landlord to prove that an increase in occupancy, within
the meaning and intent of the applicable regulation has occurred.
That burden has not been met in this case, since the presence of
the tenant's employees in the subject apartment during their
respective work shifts would not constitute such occupancy.
THEREFORE, in accordance with the applicable provisions of the Rent
and Eviction Regulations for New York City, it is
ORDERED, that this administrative appeal be, and the same hereby
is, granted, and that the order of the Rent Administrator be, and
the same hereby is, revoked, and it is further
Docket No. HD420273RT
ORDERED, that the landlord repay to the tenant within thirty (30)
days from the date of this Order any increased rent collected
pursuant to the now revoked Order of the Administrator.
Joseph A. D'Agosta