Tenant of Two-Apartment Building with Store Is Rent Controlled

Landlord asked the DHCR to determine tenant's rent regulatory status. Landlord said that the building was built in 1931 and had two apartments and one commercial store. Landlord listed tenant's name as Vincent Fusco. The DRA ruled for landlord after tenant didn't respond to notice of landlord's application. Tenant Grace Fusco later asked the DHCR to reconsider its decision. Vincent, her husband, had been deceased since 1986, and she was 78 and in poor health. She said she had lived in the apartment since at least 1968. She also pointed out that in a 1989 eviction proceeding, the court ruled that she was rent controlled.
The DRA reopened the case and ruled for tenant. Landlord appealed, arguing that tenant's request for reconsideration was untimely. The DHCR ruled against landlord. Although tenant's request for reconsideration was filed more than 95 days after the DRA's decision, the DHCR could reopen the case based on irregularities in a vital matter. Most important, tenant clearly was rent controlled. Tenant proved that she had lived in the apartment since before 1971. Prior landlord had never filed a report of statutory decontrol. And a vacancy in a two-family building after 1953 resulted in decontrol of an apartment only if the building was entirely residential. Under agency policy, landlord's building remained subject to rent control even though there were fewer than three apartments because it contained a commercial unit.

Faraone: DHCR Adm. Rev. Docket No. WC220003RP (4/4/08) [7-pg. doc.]