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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