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

     ------------------------------------X 
     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    : 
     ------------------------------------X                             

           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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