DOCKET NUMBER: AK 810083-RT
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 810083-RT
:
ELAINE WATSON MSELLE, DRO DOCKET NO.: WWP85-S-31/RV
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On November 19, 1986, the above-named petitioner-tenant filed a Petition
for Administrative Review against an order issued on October 21, 1986, by
the District Rent Administrator, 55 Church Street, White Plains, New York,
concerning housing accommodations known as Apartment C3 at 255 West Post
Road, White Plains, New York, wherein the District Rent Administrator
determined that the owner had failed to offer the tenant a renewal lease,
but that such offer would be dependent upon the outcome of a civil court
proceeding.
The issue in this appeal is whether the District Rent Administrator's
order was warranted.
The applicable section of the Law is Section 2503.5 of the Tenant
Protection Regulations.
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issue
raised by the administrative appeal.
This proceeding was originally commenced by the filing of an Individual
Tenant Statement of Complaint of the owner's failure to renew a lease.
On September 11, 1985, the complaint stated that the tenant had moved into
the apartment on June 1, 1978 pursuant to a one-year lease and that the
tenant had renewed successive one-year leases through the term expiring on
May 30, 1987. The tenant further alleged that the lease was not renewed
at that time, and that the owner, Mario and Octavio Perez, and the tenant
had been engaged in an extended eviction proceeding in White Plains Civil
Court.
On September 20, 1985 the owners were served with the complaint and were
advised to respond. Subsequently, on October 9, 1985, no response having
been received, the Administrator issued Order No. WWP85-S-31/RV finding
that the tenant remained in legal possession of the premises under the
same terms as the expired lease and that, furthermore, this would continue
until the owner offered a renewal lease for a one or two year term, at the
tenant's option, and commencing either on the date the lease would have
commenced had a timely offer been made or, on the first rent payment date
commencing 90 days after the date of the offer, also at the tenant's
option.
Subsequently, on March 21, 1986, the Administrator issued a Notice to
Modify or Revoke the above order as based upon the delayed receipt of the
DOCKET NUMBER: AK 810083-RT
owner's answer to the complaint, stamped as received by the DHCR on
September 30, 1985. The answer stated, in sum, that the tenant was not
entitled to a renewal lease because the tenancy had already been
terminated by the "decision of the court", as based on assorted
"violations of the tenancy", including the tenant's refusal to give
access to allow repairs, the defacement of the walls and throwing of
garbage by the tenants' son, and the harassment of the superintendent.
Attached to the answer was a "Notice Terminating Tenancy", dated August
29, 1985, signed by the owners and drafted, presumably, by the owner's
attorney, which stated, in addition to the alleged reasons mentioned in
the answer, that the tenant had been in "contempt" of an order issued by a
judge in a summary proceeding in White Plains City Court. No such order
was enclosed with the answer, however.
On November 21, 1985, the owners sent additional material, including an
affidavit from the superintendent, and a copy of the last notice of lease
renewal sent to the tenant, dated February 14, 1983. The packet also
contained an order of the New York State Division of Human Rights, dated
May 30, 1985, which dismissed the tenant's complaint of discrimination by
the owners. However, the owner submitted no documentation of any prior or
ongoing eviction proceeding in White Plains City Court.
The tenant sent a response on March 25, 1986, and therein denied that
there were any ongoing proceedings in the court, and that the sole
conclusion of the "harassment hearing" the previous December was that the
owners were provided with a key to the door of the apartment.
On October 21, 1986 the Administrator issued an Order of Modification or
Revocation which modified its order of October 9, 1985 to the extent of
postponing the tenant's right to a renewal lease until a "final decision
has been rendered by the City Court of White Plains relative to the remand
of the order to vacate."
In its petition, dated November 19, 1986, the tenant contends that the
modification of the original order was improper, and that the owner must
be directed to renew the lease under DHCR regulations. The tenant stated
that, following the reversal of the White Plains City Court judgment
ordering the tenant to vacate the premises, and the remand of that
nonpayment proceeding for a new decision, the owners failed to pursue the
action. Enclosed with the petition are copies of the aforementioned order
from the Supreme Court, Appellate Term, dated December 31, 1984,
dismissing the lower court judgment for the owner, and remanding the
proceeding.
The owners did not answer the petition.
The Commissioner is of the opinion that this petition should be granted.
Section 2503.5 of the Tenant Protection Regulations provides, in part,
that an owner shall notify the tenant in occupancy not more than 120 days
and not less than 90 days prior to the end of the lease term, by certified
mail, of such termination and to offer a renewal lease at the legal rent
and otherwise on the same conditions as the expiring lease, and shall give
such tenant a period of 60 days from the date of mailing to renew such
lease and accept the offer. If the landlord fails to offer a renewal
lease in accordance with the above, the tenant shall have the option of
DOCKET NUMBER: AK 810083-RT
choosing (1) whether the one-or two-year term of such renewal lease shall
commence on the date a renewal lease would have commenced had a timely
offer been made, or (2) on the first rent payment date commencing 90 days
after the date the lease is offered.
In the instant case, the tenant challenges the determination to postpone
the original order directing the owner to offer a renewal lease until the
resolution of a court proceeding on that issue. Although the owner
submitted a lengthy response to the complaint, there was no documentation
submitted below that established the existence of any court proceeding
that would affect the tenant's right to possession of the premises or to a
renewal lease. The only original court documents ever presented were
enclosed with the tenant's petition, but the owner's failure to answer the
tenant's claim that such proceeding has since been abandoned by the owner
disposes of that issue in its entirety. It is also noted that Section
2504.4 of the Regulations specifies the circumstances under which the
landlord is not required to offer a renewal lease and the pendency of a
Civil Court Action is not among the stated grounds. The original order of
October 9, 1985 must stand as issued.
THEREFORE, in accordance with the Tenant Protection Regulations, it is
ORDERED, that the tenant's petition be and the same hereby is granted, and
that the Administrator's order be and the same hereby is modified in
accordance with this opinion.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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