CJ420011RO (after remit) and IC410011RP
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 NO: 5751
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: CJ420011RO (after
remit) and IC410011RP
Charlotte Deutsch DISTRICT RENT ADMINISTRATOR'S
DOCKET NO.: CD420078RP
TENANTS: Richard and Petezi Sack
PETITIONER
------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AFTER COURT REMIT
On October 11, 1988, the above-named owner filed a petition for
administrative review of an order issued on September 6, 1988 by a Rent
Administrator concerning the housing accommodations known as 138 West 73rd
Street, Apartment B, New York, 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 administrative appeal.
This proceeding was originally commenced by the filing of an overcharge
complaint on April 23, 1985 under Docket No. LOO1663R.
The long and complex history of this proceeding is thoroughly described in
the Commissioner's order CJ420011RO (a copy of which is attached hereto).
In that Commissioner's order (Docket No. CJ420011RO issued on March 20,
1991) it was determined that the subject apartment was rent controlled only
because the subject building received J-51 benefits. The Commissioner
stated:
In 1970, the landlord applied for and received tax abatement for
the cost of the conversion of the building. The subject tenants
moved into their apartment in 1973. Ordinarily, as a result of
a vacancy occurring after June 30, 1971, the apartment would
become decontrolled as a matter of law. However, since the
landlord was receiving the benefit of tax abatement when the
tenants took occupancy, the apartment remained subject to rent
control.
Since the building contained fewer than six housing units, the
Commissioner's order went on to find that upon the expiration of the tax
abatement benefits in 1982 the apartment became entirely deregulated.
CJ420011RO (after remit) and IC410011RP
However, in that order the Commissioner also found that the subject
apartment became rent stabilized as of June 19, 1985, the effective date of
Chapters 228 and 289 of the Laws of 1985, and that, pursuant to those
chapters, the legal regulated rent would be the rent charge on May 30, 1985
or $1,200.00 per month. A subsequently executed lease raised the rent to
$1,272.00 which was less than the amount the owner could have charged under
Guideline No. 18. Accordingly, the legal regulated rent of the unit was
determined to be $1,272.00 per month for the lease period of September 1,
1987 through August 31, 1989.
Subsequent thereto, the petition was filed by the tenants in the Supreme
Court pursuant to Article 78 of the Civil Practice Law and Rules seeking
judicial review of the Commissioner's Order.
In a Stipulation to Remit date July 22, 1991, the proceeding was remitted
to the Division of Housing and Community Renewal (DHCR) for further
processing.
The basis for the stipulated remit was the fact that the Commissioner had
failed to inquire or make a specific finding that a vacancy had occurred in
the subject apartment after June 30, 1971. As noted above, in the
Commissioner's prior order of March 21, 1991, it was concluded that because
the complainant-tenant took occupancy of the subject apartment in 1973, the
apartment would ordinarily have been vacancy of the decontrolled. In the
case of Hartman v. Joy, 47 A.D. 2d 624, 365 N.Y.S. 2d 182 (1975) the court
stated, in substance, that the date of the vacancy and not the date of the
occupancy determined whether the unit was vacancy decontrolled.
Accordingly, there was a possibility that the complainant-tenants were the
first tenants since a vacancy occurring before June 30, 1971.
In the proceedings heretofore, the complainant-tenants had asserted that
the tenant immediately prior to their occupancy (Thibault) vacated the
subject apartment before June 30, 1971. The complainant-tenants maintained
that the owner had failed to prove that there was an intervening tenancy.
Accordingly, they maintain that the subject apartment has always been and
continues to be rent controlled.
In opposition, the owner had asserted that an intervening tenancy, between
the Thibault vacancy and the complainant-tenants' occupancy, did occur and
that these intervening tenants (the Friedmans) vacated the subject
apartment well after June 30, 1971.
On July 3, 1992, notice was sent to both parties affording them a final
opportunity to present evidence or comments concerning the issue of whether
the subject apartment became vacant after June 30, 1971.
In response to the July 3, 1992 notice, the owner made several submissions.
The tenant elected not to respond to the notice of July 3, 1992.
The Commissioner then forwarded to the tenants all of the owner's
supplemental submissions received in response to the July 3 notice, and the
tenants were then afforded a final opportunity to respond.
CJ420011RO (after remit) and IC410011RP
Again, the tenants elected not to respond.
It should be noted that one of the case files (Docket No. BI410480RT)
which constitutes part of the record herein had been inadvertently
misplaced. DHCR has conducted thorough searches on many occasions in an
effort to recover this file. These searches have not been successful.
DHCR then attempted to reconstruct the file and several of the documents
have been compiled into a duplicate file. Finally, on May 9, 1994 both
parties were requested to submit copies of all papers in their records
regarding this file. Neither party was able to supply any new documents
not already in the duplicate file.
The Commissioner is of the opinion that this petition for administrative
review should be granted.
DHCR's rent control registration records for the subject apartment include
an entry for April 1, 1970 which indicates that a lease was entered into by
the owner with the tenants Friedman. As a result of this lease the maximum
rent was increased to $295.00. The fact that this intervening tenancy
actually took place is bolstered by other evidence produced by the owner.
While the owner did not submit an executed lease for the claimed Friedman
tenancy, a copy of an unexecuted lease at a rental of $295.00 per month for
the subject apartment between the owner and the Freidmans dated March 6,
1970 was submitted. The lease term for this unexecuted lease was April 1,
1970 to March 31, 1972.
The evidence strongly indicates that there was an intervening tenancy
between tenant Thibault and the complainant tenant. Accordingly, the
Commissioner must address the second part of this issue: namely, did this
intervening tenancy terminate after June 30, 1971?
Again the evidence in the record supports the owner's position that the
Friedmans remained in occupancy until well after June 30, 1971. The owner
has submitted copies of the pages from the 1971 and 1972 Manhattan
telephone directories showing a listing for Joel Friedman in this subject
building.
Ordinarily, as result of a vacancy occurring after June 30, 1971, the
apartment would become decontrolled as a matter of law. In this case, the
subject apartment remained rent decontrolled only until the tax abatement
benefits expired in 1982. From 1982 until June 19, 1985 the unit was
unregulated and subsequently rent stabilized.
The Commissioner incorporates these specific findings of fact with the
prior Commissioner's order of March 20, 1991 under Docket No. CJ420011RO
and the conclusions of that order are reinstated and in full force and
affect.
THEREFORE, in accordance with the provisions of the Rent Stabilization Law
and Code, it is
ORDERED, that this petition for administrative review be, and the same
hereby is, granted, that the order of the Rent Administrator be, and the
same hereby is, revoked, and the Commissioner's prior order of March 20,
1991 be, and the same hereby is, reinstituted.
CJ420011RO (after remit) and IC410011RP
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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