DOCKET NUMBER: ART 10997-L; SJR 3713
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 SJR NO. 3713
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. ART 10997-L
:
DRO DOCKET NO.OI 10623-D2;
HENRY SMITH, HASKEL OI 10898-D2;OI 11068-D2;
HOFFENBERG & SANDRA CHARLAP OI 10897-D2;TC 68785-G
PETITIONER : TC 72623-G;TC 80308-G
------------------------------------X
ORDER ND OPINION REOPENING PROCEEDING AND DENYING PETITION FOR
ADMINISTRATIVE REVIEW AFTER REVIEW AND RECONSIDERATION
PURSUANT TO JUDGMENT OF COURT
On June 13, 1986 the abovenamed petitioner tenants filed a Petition for
Administrative Review against an order issued on May 9, 1986 by the
Administrator concerning the housing accommodations known as 40 East 62nd
Street, Apartments 3E, 3W & 4E, Lower Manhattan.
On October 28, 1988 the Commissioner issued an order and opinion denying
the petition.
The tenants instituted an Article 78 proceeding and the matter was
remitted by the Court for limited reconsideration as discussed more fully
infra.
In 1982 and 83 the owner, The Browning School, an educational non-profit
institution, filed applications with the Conciliation and Appeals Board, a
predecessor of this agency, formerly charged with administering the Rent
Stabilization Law and Code pursuant to Section 54D of the then applicable
former Rent Stabilization Code. The applications sought permission not
to renew the tenants' leases and to withdraw the accommodations from the
rental market for use in connection with its educational activities.
In 1983 and 84 the tenants subsequently filed complaints of the owner's
failure to offer them renewal leases pursuant to Section 60 of the former
Code within the "window" period specified therein (not more than 150 nor
less than 120 days prior to the expiration of their last leases).
The chronology of the filing of the owner's applications and the tenants'
complaints, the effective dates of the tenants' last leases, and the
"window" periods under Section 60 of the former Code is set forth for
convenience in a schedule infra.
The Commissioner notes that 2 applications were filed prior to and one
within the "window" period. In the case of petitioner Hoffenberg
(Apartment 4E) a letter was sent to the tenant also prior to the window
period. In the case of petitioner Charlap (Apartment 3E) the owner
alleged that a letter was sent during the window period on October 4, 1983
advising of its intent not to renew the lease.
DOCKET NUMBER: ART 10997-L; SJR 3713
SCHEDULE
Tenant Apt Owner's Tenant's Last Lease "Window"
Application Complaint Term
Smith 3W 2/10/83 5/13/83 9/1/80-8/31/83 4/3-5/3/83
Hoffenberg 4E 11/19/82 1/12/83 4/1/80-3/31/83 11/1-12/1/82
Charlap 3E 9/8/83 1/3/84 3/1/81-2/28/84 10/1-10/31/83
This agency assumed jurisdiction of the proceeding on April 1, 1984
pursuant to the Omnibus Housing Act of 1983.
Prior to the filing of the owner's applications respecting tenants Smith &
Hoffenberg the Legislature by Chapter 555 of the Laws of 1982 had
effectively removed the statutory basis (Section YY51-6.0(c)(9) of the New
York City Administrative Code) for Sections 54D(2) & (4) of the former
Stabilization Code as of June 20,m 1982. The Omnibus Housing Act had the
effect of reinstating Sections 54D(2) & (4) as of June 30, 1983 (or prior
to filing of the owner's application respecting tenant Charlap) but also
transferred jurisdiction of such matters to the courts.
Thus, there was a statutory vacuum or hiatus from June 20, 1982 to June
30, 1983 during which the CAB did not have any authority to entertain
applications such as the owner's. Thereafter jurisdiction of such
matters was transferred to the courts.
The herein appealed order of the Administrator, issued after a hearing
conducted on September 11, 1985, dismissed the owner's applications on the
grounds that this agency never had jurisdiction due to the changes in the
law abovenoted. The Administrator also dismissed the tenants' complaints
noting that they might be raised as defenses in any court proceeding
commenced by the owner or, in the alternative, finding that the complaints
may be refiled if the owner did not commenced such a proceeding. (Such a
court proceeding has been instituted and is currently pending).
The tenants have urged throughout this proceeding that, although this
agency had no jurisdiction over the merits of the owner's applications, it
has always had jurisdiction over the tenants' complaints.
The tenants point out that as to 2 of them, Smith & Hoffenberg, the
relevant window periods ran out during the abovenoted statutory hiatus and
argue that the owner's applications, also filed during that period were
legal nullities; thus, there was no legal justification for the owner
refusing to renew their leases.
The tenants further argue that none of them had received formal notice of
the owner's intent not to renew their leases within the window periods
and, therefore, their rights to renewal leases have vested in accord with
the determination of the Court of Appeals in Golub v. Fran, 65 NY 2d 900,
493 NYS 2d 451 (1985).
The Commissioner notes that in the interim the current Stabilization Code
became effective as of May 1, 1987 and that under Sections 2524.2 and
2524.4 thereof an owner in the position of the Browning School would
today be required to give specific notice within a 150-120 day window
period as a condition precedent to going to court to obtain possession of
the apartments. There was no similar provision in the prior Rent
Stabilization Code.
DOCKET NUMBER: ART 10997-L; SJR 3713
As abovenoted, the Commissioner denied the tenants' petition against the
Rent Administrator's order and the tenants instituted an Article 78
proceeding.
In remitting the proceeding on the Article 78 as abovenoted, Justice Cohen
stated, "...[T]he issue of whether the landlord is entitled to recover
possession of the apartments herein is properly before this court....
[However] petitioner's application is granted to the extent of remanding
tot he DHCR the issue of the landlord's compliance or lack thereof with
the correct procedure outlined in the RSC before refusing to renew the
tenants' leases."
The Commissioner, upon reconsideration pursuant to judgment of Court, is
of the opinion that the petition should be denied.
Section 2527.7 of the current code provides that:
"Except as otherwise provided herein, unless undue hardship or prejudice
results therefrom, this Code shall apply to any proceeding pending before
the DHCR, which proceeding commenced on or after April 1, 1984, or where a
provision of this Code is amended, or an applicable statute is enacted or
amended during the pendency of a proceeding, the determination shall be
made in accordance with the changed provision."
The Commissioner finds that were the owner's applications to be denied
solely on the basis of the new Code's notice of non renewal provisions
then that would result in substantial prejudice. Therefore, application
of the pre May 1, 1987 Code warrants consideration.
The Commissioner also finds that absent a finding of intentional delay
(waiting for the restoration by the Legislature of the statutory predicate
for this type of application) the mere fact that the owner's applications
were pending during the period when the statutory underpinning did not
exist does not preclude applying the law as it existed when the decision
was made. It is clear that the general rule is that, unless there is
clear prejudice, the law at the time of the decision governs.
So the next question presented is what prejudice would there be to the
tenants? The Commissioner has previously ruled that the absence of strict
compliance with timely notices of non renewal in cases requiring an
application to the Agency will not act to totally defeat an owner's rights
as long as the owner was in substantial compliance and not acting in bad
faith (See Docket Nos. BH 410017-RO et al).
In this case the Commissioner finds that, taking into consideration all of
the equities, there exists no prejudice to the tenants. Even had there
been an immediate decision dismissing the owner's applications on the lack
of a statutory predicate and even had the owner then given renewal leases
and first recommenced the action upon the enactment of the Omnibus Housing
Act, serving notices of non renewal at that point, those leases would
have long since expired. The tenants have also been exempt throughout
this proceeding from guidelines increases to which the owner would have
been entitled if their leases had been regularly renewed. The
Commissioner is of the opinion that the tenants have already enjoyed all
the protection to which (arguendo) they might have been entitled and that
they have not been prejudiced.
The tenants are now seeking additional benefits-that the owner be forced
to also offer leases for additional 2 or 3 year terms, await new window
DOCKET NUMBER: ART 10997-L; SJR 3713
periods, give additional formal, notice, and then begin new judicial
proceedings to obtain the apartments for its not profit educational
objectives. The Commissioner is of the opinion that it is not the intent
of the law to confer such additional benefits against this non-profit
owner.
The Commissioner also notes that the instant applications were all filed
within or prior to the window periods applicable for other purposes under
judicial interpretation and the tenants thereby had actual notice that
their leases would not be renewed. Accordingly, the Commissioner finds
that the owner's applications would not have been dismissed and the
tenants' complaints granted simply because the owner had not given notice
of non renewal in addition to the applications or because of lack of
jurisdiction.
The Commissioner therefore finds that this owner is not now required to
tender new leases and await new window periods before commencing judicial
proceedings to obtain the apartments for non-profit educational purposes.
THEREFORE, pursuant to the judgment of the Court and 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 Commissioner's prior order of October
28, 1988 be, and the same hereby are, modified so as to conform to this
order and opinion and, as so modified, are affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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