DOCKET NO.:  HL220084RO
                                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   :   
      APPEAL OF                                 ADMINISTRATIVE REVIEW
                                            :   DOCKET NO. HL220084RO
               M & S BAKERY INC.                DISTRICT RENT ADMINISTRATOR'S
              c/o SOLOMON STIEL,            :   DOCKET NO. GE220014AD
                             PETITIONER                     
                                            :
      --------------------------------------X            


        ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
                  AND REMANDING PROCEEDING TO THE RENT ADMINISTRATOR

      On December 13, 1993, the above-named landlord timely filed a petition for 
      administrative review of an order issued on January 29, 1993 by a Rent 
      Administrator concerning the housing accommodation known as the Top Floor 
      Apartment, 4616 18th Avenue, Brooklyn, New York.

      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.

      In a letter dated March 2, 1992, the subject tenant alleged, among other 
      things, that the Administrator should commence a proceeding to determine the 
      subject apartment's maximum rent; that the subject tenant resides in the top 
      floor apartment; that the subject tenant has occupied the subject apartment 
      prior to June 30, 1971; that the subject apartment was not registered, and 
      that "the first floor apartment (apartment over bakery, also known as second 
      floor) had a registered rental of $43.47 per month."

      On June 24, 1992, the Administrator mailed a notice to the subject tenant 
      directing him to submit to the rent agency the following information:  the 
      date of the subject tenant's initial occupancy, proof of the date of initial 
      occupancy, the tenant's rental history, and the tenant's current rent.

      In his response dated July 20, 1992, the subject tenant asserted, among 
      other things, that he commenced occupancy in the subject apartment on 
      December 31, 1964, and that from 1965 to 1971 the subject tenant's rent was 
      $90.00 per month.

      To his response the subject tenant attached, among other things, a copy of 
      a letter written by a Con Edison customer service representative.  In the 
      above-mentioned letter it was noted that the subject tenant's account at the 
      subject apartment was opened on December 31, 1964, and that the subject 
      tenant's apartment is listed as the third floor apartment.










          DOCKET NO.:  HL220084RO

      In its answer dated October 8, 1992, the subject landlord asserted, among 
      other things, that the subject building is a one-or two-family house; that 
      the subject tenant commenced occupancy in the subject apartment in 1964; and 
      that as there has been a vacancy in the subject apartment on or after April 
      1, 1953, the landlord asserted that the subject apartment is not rent 
      controlled, pursuant to the applicable rent regulations.

      To its response the subject landlord attached, among other things, a copy of 
      an affidavit sworn to on March 24, 1992 by Sarah Shirley Gerb, the daughter 
      of a former landlord of the subject building, in which she alleged that her 
      mother owned the subject building from August, 1939 until July, 1973.

      In the order under review herein issued on January 29, 1993 under Docket No. 
      GE220014AD, the Administrator determined that the subject tenant "has 
      submitted evidence of continuous occupancy since prior to June 30, 1971; 
      that the subject apartment is rent controlled, and that the subject 
      apartment's maximum rent should be $43.47 per month effective as of the date 
      of the tenant's initial occupancy.

      In its petition the subject landlord reiterates its assertions which were 
      submitted in the proceeding before the Rent Administrator.  In addition, in 
      its petition the subject landlord asserts, among other things, that the 
      subject building is a two-family house with one commercial  tenant; that 
      when the subject landlord purchased the subject building in 1982 the 
      contract of sale provided that there were no apartments subject to rent 
      regulation; that the rent agency's records pertaining to the subject 
      apartment's maximum rent are in error; that the ground floor of the subject 
      building is operated as a bakery; that prior successive  owners of the 
      bakery resided in the subject apartment until 1964, and that the subject 
      apartment should be decontrolled based upon owner occupancy, pursuant to the 
      applicable rent regulations.

      To its petition the subject landlord attaches a copy of a rider to the 
      above-mentioned contract of sale which provides, among other things, that 
      included in the subject building's purchase price is a bakery business; that 
      there are two decontrolled tenants residing in the subject building, and 
      that the subject tenant resides in the top floor apartment and another 
      tenant resides in the "first floor" apartment.

      To its petition the subject landlord also attaches, among other things, an 
      affidavit sworn to on December 8, 1993 by the daughter of the former owner 
      of the subject building Sarah Shirley Gerb, which alleges, among other 
      things, that her mother owned the subject building from August, 1939 until 
      1973; that her family resided in the second floor apartment until 1945; that 
      after 1945 the entire building was leased to successive tenants "who 
      operated the bakery and resided upstairs as owner occupiers," and that the 
      affiant states that:  "Although the Bakery business and upstairs apartment 
      were leased this arrangement amounted to a sale except that the deed 
      remained with us as security for the mortgage."

      After careful consideration, the Commissioner is of the opinion that the 
      landlord's petition should be granted in part and that the proceeding should 
      be remanded to the Administrator for further review.


      Section 2200.2(f)(12) of the City Rent and Eviction Regulations provides, in 
      pertinent part, that housing accommodations in one-and two-family houses 



          DOCKET NO.:  HL220084RO

      which were or shall become vacant on or after April 1, 1953 shall be 
      decontrolled.

      The above-mentioned section applies only when the subject building is used 
      exclusively for residential purposes.

      As the record reflects that the subject building contains a bakery, the 
      Commissioner finds that the subject building is not exclusively used for 
      residential purposes.

      Accordingly, the Commissioner finds that the subject apartment does not 
      qualify for decontrol pursuant to Section 2200.2(f)(12) of the City Rent and 
      Eviction Regulations.

      As to the subject landlord's assertion that the contract of sale provided 
      that the subject apartment is decontrolled, the Commissioner finds that the 
      rental status of a housing accommodation is determined by the applicable 
      rent regulations and not by the terms of a deed or a contract of sale.

      Accordingly, the Commissioner finds that the provisions in the 
      aforementioned rider to the contract of sale do not determine the rental 
      status of the subject apartment in this proceeding.

      As to the subject landlord's assertion that the subject apartment is 
      decontrolled based upon owner occupancy, the Commissioner finds that the 
      subject landlord has the burden of proof in establishing that fact.

      The Commissioner points out that in the aforementioned affidavits submitted 
      by Sarah Shirley Gerb, she asserts that her mother owned the subject 
      building from August 1939 until 1973, and that her family resided in the 
      subject apartment on the 2nd floor until 1945.

      The Commissioner notes that an apartment does not qualify for owner- 
      occupancy decontrol when the owner vacates that apartment prior to April 1, 
      1953.

      As to the above-mentioned affiant's assertion that the alleged bakery 
      owners, as named in her affidavit, "resided upstairs as owner occupiers," 
      the Commissioner finds that that assertion is belied by the affiant's own 
      statement that her mother owned the subject building from 1939 until 1973.

      Even if the aforementioned former bakery owners, as named in the 
      aforementioned affidavit, were owners of the subject building, the 
      Commissioner finds that the subject landlord does not submit any probative 
      evidence showing that any of the former bakery owners actually occupied the 
      subject apartment for one or more years as owner of the subject building, 
      pursuant to the applicable rent regulations.

      Based upon the record, the Commissioner finds that the subject apartment has 
      not been decontrolled.



      The Commissioner notes that in the subject tenant's letter dated March 2, 
      1992, he pointed out that he resides in the top floor apartment; that, as 
      the tenant alleged, the subject apartment has not been registered, and that 
      a different apartment (the apartment over the bakery) "had a registered 







          DOCKET NO.:  HL220084RO

      rental of $43.47 per month."  The Commissioner further notes that the 
      aforementioned letter from Con Edison listed the subject tenant's apartment 
      as the third floor apartment.

      The record reflects that the aforementioned apartment over the bakery was, 
      in fact, registered with the Office of Price Administration (the rent agency 
      which regulated the Federal Rent Control Laws), and that the rent control 
      registration card for the above-mentioned apartment lists its maximum rent 
      as $43.47 per month.

      The Commissioner is of the opinion that the Administrator inadvertently 
      established the subject apartment's maximum rent based upon the rent control 
      registration card for a different apartment.

      Accordingly, the Commissioner is of the opinion that the subject landlord's 
      petition should be granted in part to the extent of remanding the proceeding 
      to the Rent Administrator to redetermine the subject apartment's maximum 
      rent pursuant to Section 2202.22 of the City Rent and Eviction Regulations.

      The Commissioner finds that the Administrator's order under review herein 
      should be modified to reflect the fact that the top floor apartment or the 
      third floor apartment is, in fact, the subject apartment in this proceeding.

      The Commissioner finds that the Administrator's findings that the subject 
      apartment is rent controlled should not be disturbed.

      THEREFORE, in accordance with the City Rent and Rehabilitation Law and the 
      Rent and Eviction Regulations, it is

      ORDERED, that this petition be, and the same hereby is, granted in part to 
      the extent of remanding this proceeding to the Rent Administrator to 
      determine the subject apartment's maximum rent pursuant to the applicable 
      rent regulations, and that the Administrator's order shall be modified in 
      accordance with this order and opinion; and it is 

      FURTHER ORDERED, that the subject apartment is rent controlled; and it is, 

      FURTHER ORDERED, that the subject apartment's maximum rent shall remain at 
      $43.47 per month until a new order is issued on remand.

      ISSUED:



                                                                                
                                                      JOSEPH A. D'AGOSTA
                                                      Deputy Commissioner 
    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name