DOCKET NUMBER: AK-410406-RO
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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: AK-410406-RO
:
ABINGTION HOLDING / ABI KALIMIAN, DRO DOCKET NO.: ZL-001785-RV
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On November 5, 1986, the above-named owner filed a Petition for
Administrative Review against an order issued on October 23, 1986 by the
Rent Administrator, Gertz Plaza, 92-31 Union Hall Street, Jamaica, New
York, concerning Apartment No. 2S at 295 Park Avenue South, Manhattan, New
York, wherein the Administrator directed the owner to offer the tenant a
renewal lease.
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.
The original proceeding was commenced on October 15, 1984, by the filing
of a complaint of the owner's failure to renew a lease, by the tenant (
I. Christopher Vallejo, Jr.) who alleged this current lease expired on
September 30, 1984 and that the owner failed to offer a renewal lease
within the time-period prescribed by the Rent Stabilization Law.
A copy of the tenant's complaint and DHCR answer forms were mailed twice
to the petitioner-owner in its correct address as stated in the record.
On May 13, 1985, the owner was mailed a copy of the tenant's complaint,
with a notification that "failure to file an answer within twenty (20)
days from the date appearing on this letter shall be considered a default
and shall result in determination based on record." Thereafter, a second
mailing of a copy of the tenant's complaint was made, with a warning to
the owner that this notice is final. The petitioner-owner failed to
respond to the above notices.
In the order under appeal, the Administrator determined that the tenant
is eligible to a renewal lease and that the owner is directed to offer to
the tenant a renewal lease in the manner prescribed by law.
The owner petitioned a review of this order, claiming in substance that
the tenant has not resided in the apartment for over 6 years; that the
tenant failed to execute a renewal lease; and that two other prime tenants
lived in this apartment.
DOCKET NUMBER: AK-410406-RO
The Commissioner is of the opinion that this petition should be denied.
Section 26-511 of the Rent Stabilization Law requires an owner to grant a
one-or two-year vacancy or renewal lease at the option of the tenant.
Furthermore, Section 48 of Chapter 403 of the Laws of 1983 requires that
for vacancy leases commencing on or after October 1, 1983, an owner allow
the tenant an option of a one-or two-year lease. Section 23A and 60 of
the former Code provided in pertinent part that every landlord shall
notify the tenant in occupancy not more than 150 days and not less than
120 days prior to the end of the tenant's lease of such termination of
the lease term and offer to renew the lease at the legal regulated rent
permitted for such renewal and otherwise on the same conditions as the
expiring lease. These provisions were in effect when the tenant and the
owner executed the vacancy lease.
The record shows that although duly notified o do so, the petitioner-
owner did not respond to two DHCR notices below. A copy of the tenant's
complaint and DHCR answer forms were mailed twice to the petitioner-owner
in its correct address as stated in the record. On May 13, 1985, the
owner was mailed a copy of the tenant's complaint , with a notification
that "Failure to file an answer within twenty (20) days from the date
appearing on this letter shall be considered a default and shall result in
determination based on record." Thereafter, a second mailing of a copy of
the tenant's complaint was made, with a warning to the owner that this
notice is final.
Accordingly, the Commissioner finds that the Administrator properly
determined that the tenant is entitled to a renewal lease.
As to the owner's allegations in this petition, the Commissioner notes
that these contentions were not raised below, and the Commissioner shall
not entertain them now at administrative appeal. In addition, the
petitioner-owner produced no convincing proof in its denial of the
tenant's primary residence. Furthermore, if the petitioner-owner did
offer the tenant a renewal lease (which is highly unlikely due to
insufficient evidence), the petitioner-owner failed to do so pursuant to
sections of the Code cited above.
The commissioner notes that if the owner failed to offer a renewal lease
in accordance with the Administrator's order, the owner must now offer a
lease in accordance with the Section 2523.5(c) of the Rent Stabilization
Code, which took effect May 1, 1987. This section provides:
(c) Where the owner fails to timely offer a renewal lease or rental
agreement in accordance with subdivision (a) of this section,
the one or two year lease term selected by the tenant
shall commence at the tenant's option, either (1) on the date a
renewal lease would have commenced had a timely offer
been made or (2) on the first rent payment date occurring no less
than 120 days after the date that the owner does offer the lease
to the tenant. In either event, the effective date of
DOCKET NUMBER: AK-410406-RO
the increased rent under the renewal lease shall commence on the
first rent payment date occurring no less than 120 days after
such offer is made by the owner, and the guidelines rate
applicable shall be no greater than the rate in effect on the
commencement date of the lease for which a timely offer should
have been made.
THEREFORE, in accordance with the provisions of the Rent Stabilization Law
and Code, it is
ORDERED, that this petition be, and the same hereby is, denied and that
the Administrator's order, and the same hereby, is affirmed in accordance
with this Order and Opinion.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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