ADM. REVIEW DOCKET NO. AL 410136 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. AL 410136 RT,
AL 410200 RT
VARIOUS TENANTS : DRO DOCKET NO.
OI 10799-D through
OI 10814-D
Cindy Real Estate
Partnership - owner
PETITIONER :
------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 15, 1986 the above-named petitioners filed
Petitions for Administrative Review against an order issued on
November 10, 1986 by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York concerning the housing accommodations
known as 49 Park Avenue, New York, New York, wherein the
Administrator terminated the proceeding and denied the tenants'
application for attorneys' fees, costs, and a stay prohibiting the
commencement of a similar proceeding for two years.
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 in the administrative appeal.
This proceeding was commenced on July 1, 1983 when the owner
filed a consolidated application under the above-referenced docket
numbers, pursuant to Code section 54(d)(1), seeking to be relieved
of the requirement to offer renewal leases to the tenants upon the
ground that the owner wished to recover the dwelling units for the
purposes of demolishing the building and constructing a new
building.
In opposition to the application, denying that the owner was
applying in good faith and listing at least twelve (12) purported
violations of housing codes, the tenants alleged that the owner
had permitted living conditions at the subject premises to
deteriorate to encourage the tenants to vacate.
Although afforded the opportunity to do so, the owner did not
respond to the tenants' allegations.
In accord with established procedures, a hearing to determine
all issues relating to the owner's application was scheduled.
Included in the application process was the requirement that the
owner demonstrate its financial ability to proceed with the
ADM. REVIEW DOCKET NO. AL 410136 RT
proposed project. During the course of the hearings, the tenants
contended that the owner had not obtained a genuine financing
commitment. On September 15, 1986, the owner notified the
Division that its mortgage application had been denied and as a
result of this denial, it was withdrawing its section 54(d)
application. Based on the owner's alleged showing of bad faith,
the tenants moved for an order staying the owner from refiling a
similar application for a period of two years and for an award of
attorney's fees and costs.
The owner responded that the Division was not empowered to
grant attorney fees in the instant case. Moreover, the owner had
voluntarily discontinued the proceeding. Furthermore, the owner
argued, the facts demonstrate that it had proceeded in good faith.
In the order issued on November 10, 1986, the Administrator
terminated the proceeding and denied the tenants' application for
attoneys' fees, costs and a stay prohibiting the commencement of a
similar proceeding for two years. The Administrator directed the
owner to proffer renewal leases to the tenants.
In the appeal, the tenants contend that the record
demonstrates that the owner acted in bad faith and that the
owner's section 54(d) application was a sham as it had no
intention of demolishing the subject building. The tenants
further contend that because the owner attempted a fraud on the
DHCR in submitting worthless financial commitment letters which
necessitated the outlay of substantial time and money, the tenants
should be awarded attorneys' fees. The tenants assert the DHCR
has the authority to grant the relief under Code section 8. The
tenants assert in the alternative that the Administrator was
enabled by Section 234 of the Real Property Law to award them
attorneys' fees.
The Commissioner is of the opinion that these petitions
should be denied.
The Rent Stabilization Law does not specifically provide,
except for a proceeding based on an overcharge complaint, for the
award of attorneys' fees and costs. The petitioners' reliance on
Real Property Law section 234 is similarly misplaced. R.P.L.
section 234 provides for the recovery of attorney fees in an
action or summary proceeding and is inapposite as an
administrative proceeding is not an action in court. Matter of
Fiedelman v. N.Y. State Department of Health 58 NY 2d 80, 459 NYS
2d 420 (1983). Chessin v. New York City Conciliation and Appeals
Board 100 A.D. 2d 297, 474 NYS 2d 293 (1st Dept 1984).
Accordingly, the Commissioner finds that the Administrator
correctly denied the tenants' application.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that these petitions be, and the same hereby are,
denied, and the Rent Administrator's order be, and the same hereby
is, affirmed.
ISSUED:
ADM. REVIEW DOCKET NO. AL 410136 RT
ELLIOT SANDER
Deputy Commissioner
|