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
APPEAL OF ADMINISTRATIVE REVIEW
DOCKET NOS:ARL11953-L
R. Giurdanella/Fraclac Realty D.R.O. DOCKET
NO:L001937RV
PETITIONERS
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW AND
MODIFYING RENT ADMINISTRATOR'S ORDER
On July 18, 1986 the above named petitioner-owner filed a
Petition for Administrative Review against an order issued on
June 27, 1986 by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, NY concerning housing accommodations known as Apartments
9 and 10, 43 East 11th Street, New York, NY.
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 commenced on March 11, 1985 by the tenant
filing a complaint based on the owner's failure to renew the
lease on the same terms and conditions as the prior lease which
commenced December 1, 1982 and expired November 30, 1984 at a
monthly rental of $330.88.
The tenant indicated that he took occupancy of the subject
premises on December 1, 1979 but was not named as a tenant in the
lease until December, 1980. The tenant submitted a copy of the
owner's renewal offer which advised the tenant that the
passageway between Apartments 9 and 10 had to be closed and
afforded the tenant the option of accepting a renewal lease for
either Apartment 9 or Apartment 10.
In answer to the complaint, the owner alleged that Apartments 9
and 10 were separate units that were rented in December, 1977
under one lease to two prior tenants who were given permission to
make an opening between the apartments and that the prior
tenants advised that the opening would be closed when they
Docket No. ARl11953L - 2 -
vacated. The owner further alleged that when the subject tenant
took occupancy in December, 1979 the owner believed that the
apartments were separate units, that separate registration
statements were filed for each in 1984 and that upon discovering
that the passageway had not been closed, it notified the subject
tenant that the passageway had to be closed prior to signing a
renewal lease for the two apartments.
The tenant subsequently advised that the owner had offered a
renewal lease that included surcharges for each apartment which
the tenant did not accept.
In Docket No. L-001937-RV, issued June 27, 1986, the Rent
Administrator determined that the subject tenant was occupying
the subject apartments as an integral unit and not as two
separate apartments, that the owner consented to this usage by
executing the lease commencing December 1, 1982 in the tenant's
name, that the owner was not eligible for the differential
(referred to by the tenant as a surcharge) allowed under Rent
Guideline Order No. 16, that the renewal lease was to be
calculated on the base rent of $330.88, i.e., the rent indicated
in the expired lease, and that the registrations should be
modified accordingly.
The Rent Administrator further directed the owner"to offer to the
tenant, within 30 days of this order, a renewal lease for one or
two years, at the tenant's option. The tenant shall be afforded
60 days to accept such offer and select an option. The lease
shall commence on the day a fully executed copy is served upon
the tenant and shall run prospectively for the term selected by
the tenant. The rental provided therein shall be at the lawful
guidelines increase in effect and otherwise on the same terms and
conditions as provided in the expiring lease, except as otherwise
provided in the Code."
In this petition, the owner contends that while it may have
agreed to rent the subject premises to the subject tenant, it
never intended to give up its rights as the owner of each unit,
that the subject tenant had agreed to close the passageway at the
expiration of the December 1, 1982 lease and that the owner is
holding in escrow money received form the tenant for that
purpose. The owner further contends that the commencement date
of the renewal lease it was directed to offer the tenant should
be reconsidered.
In response, the tenant asserts that while he agreed to provide
the owner funds to close the passageway, said agreement is not an
admission that he had rented separate units. The tenant maintains
that the premises have been rented to him as a single unit under
a single lease since his initial occupancy and that the owner
failed to offer a lease consistent with his previous lease.
Docket No. ARL11953L - 3 -
The Commissioner is of the opinion that this petition should be
denied and the Rent Administrator's order modified.
The evidence of record shows that the subject premises,
Apartments 9 and 10, have been occupied by the tenant as an
integral unit and were rented as such by the owner under a single
lease at a single rental amount. Having previously agreed to
joint occupancy of the apartments by the subject tenant, the
owner cannot unilaterally terminate such occupancy. Accordingly,
the Commissioner finds that the Rent Administrator properly
ordered the owner to offer the subject tenant a prospective
renewal lease on the same terms and conditions as the tenant's
expired lease.
Section 2523.5 (c) of the Rent Stabilization Code (effective May
1, 1987), made applicable to pending petitions filed after April
1, 1984 by Section 2529.10, provides:
"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 that 120 days after the date that the
owner does offer the lease to the tenant. In either event,
the effective date of 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".
The record shows that the owner has failed to comply with the
Rent Administrator's order to offer the tenant a renewal lease.
Therefore, the owner is directed to offer the tenant a renewal
lease within 30 days of the issuance of this order. The tenant
shall have the option of selecting a one or two year lease and be
given 60 days to exercise a choice.
In accordance with Section 2523.5 (c), the renewal lease to be
offered pursuant to this order must commence (since the tenant
has rejected a lease retroactive to 1984) on the first rent
payment date no less than 120 days after the owner's offer of a
prospective lease. The guideline rate shall be no greater than
the rate in effect on December 1, 1984 (the commencement date had
a timely renewal offer been made), i.e., no greater than 6%for a
one year lease or 9% for a two year lease. Since the owner
failed to comply with the similar order issued by the Rent
Administrator, the Commissioner hereby emphasizes that if, for
example, the owner offers the tenant a renewal lease 15 days from
the issuance of this order, then the earliest starting date would
Docket No. ARL11953L
be the first rent payment date at least 135 (15+120) days form
the issuance of this order.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is, denied,
and the Rent Administrator's order be, and the same hereby is,
affirmed as modified by this order and opinion.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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