Docket No BF610411RO
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 NOS.: BF610411RO,
EL620197RO
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NOS.: ZBC000019OE,
Gladys and Jose Cisneros ZEH620008OE
Tenant: Edda Suarez
PETITIONER
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
These proceedings are hereby merged as they involve common
issues of law and fact.
The above-named owners filed timely petitions for
administrative review (PARs) of orders issued concerning the
housing accommodations known as 1159 Fteley Avenue, Apartment 2R,
Bronx, New York.
The Commissioner has reviewed all the evidence in the record
and has carefully considered that portion of the record relevant to
the issues raised by the petitions.
The primary issue in these proceedings is whether the
Administrator properly denied the owners' requests for a
certificate of eviction based on the alleged need for the subject
apartment for the use of family members.
PAR #BF610411RO was timely filed by the owners in response to
the Administrator's order #ZBC000019OE which was issued on May 22,
1987, in which the Administrator found that the tenant had been in
occupancy of the subject apartment for more than 20 years, and
thus, pursuant to Section 2204.5(a) of the Rent and Eviction
Regulations, could not be evicted by the owners in order that the
owners could occupy her apartment for their own use. On appeal the
owners contend that the tenant has not proved that she occupied the
subject apartment for the period 1967-1977. In general, the owners
allege that the evidence submitted by the tenant to prove that she
had lived in the apartment for twenty years was hearsay, self-
serving and not subject to cross examination. However, in this
first petition the owners offer no specific objection to any item
of evidence, nor did the owners submit any documentary evidence in
this first appeal. In addition, the owners allege "on information
and belief" that the tenant had resided in Puerto Rico from 1969
through 1979 (sic). The owners further allege that the
Docket No BF610411RO
Administrator failed to consider DHCR Docket #2DR-86032 "which
reveals that apartment is decontrolled pursuant to Section 2F(17)".
The Commissioner is of the opinion that this petition should be
denied.
The record shows that the owners were served with the tenant's
March 9, 1987 response to their applications. Nevertheless, the
owners' contentions regarding tenant's occupancy from 1967-1977 (or
1969-1979) were not raised by the owners below, but for the first
time on appeal. As such, they cannot be considered by the
Commissioner. Moreover, the owners do not document their
allegations that the tenant was not in occupancy of the subject
premises for the above-stated time period(s).
The Commissioner notes that the tenant submitted evidence of
her occupancy of the subject apartment, including statements from
a doctor and from former owners that she had occupied the subject
premises continuously since 1966. Although the tenant submitted
evidence of her marriage and divorce in Puerto Rico, no evidence
(or even an allegation) that she lived there was presented to the
Administrator in the first proceeding.
Based on the record as a whole, the Commissioner hereby finds
that the Administrator in the first proceeding correctly found that
the tenant had been a tenant for over twenty years. Regarding the
owner's contention that the Administrator had failed to consider
Docket Number 2DR-86032, the Commissioner notes that on January 11,
1974 the predecessor agency accepted a Decontrol Report under that
Docket Number from a prior owner "pending examination and review."
However, the subject apartment was never decontrolled. Indeed, its
rent control status was affirmed on October 18, 1985 under Docket
Number CPLA 33,988.
The second PAR in this proceeding, EL620197RO, was filed by the
owners in a timely fashion against Administrator's order
#ZEH620008OE, issued on November 7, 1990, in which Order the
Administrator denied a second Application for Eviction of the
identical tenant from the identical premises for the use of the
owners' son. In that order the Administrator explicitly relied on
the finding of the previous Administrator's order that the tenant
had resided in the subject premises for twenty years. (The owners
had contended before the Administrator in the second proceeding
that the prior Administrator's order should be revoked because it
was allegedly based on false evidence.)
On appeal, the owners again contend that the evidence submitted
by the tenant in both proceedings to prove 20 year occupancy is
alternatively false or irrelevant, and cite Section 2206.6 of the
Rent and Eviction Regulations for the proposition that the
Administrator may revoke any order if that order is based on false
evidence.
The Commissioner is of the opinion that this second petition
should also be denied.
Because the issue of the length of the tenant's occupancy of
Docket No BF610411RO
the subject apartment had been settled by the Administrator in the
first proceeding, the Administrator in the second proceeding was
correct to have relied on the first order in making the finding
that the tenant had been in occupancy of the subject apartment more
than twenty years.
The Commissioner finds that the owners have failed to
demonstrate that the first Administrator's order should have been
or should now be revoked because of the alleged falsity of the
evidence relied upon therein. The owners allege in this appeal of
the second order that the tenant misrepresented that she had lived
in the subject for twenty years and that if the evidence submitted
by the tenant in both proceedings is "scrutinized and reviewed, it
will become clear that the respondent has not occupied the subject
housing accommodations [for twenty years]." In this petition no
new proof of this allegation is offered. Instead, the owners
attach their reply to the tenant's response in the second
proceeding before the Administrator (EH-620008-OE). In this reply
the owners argued that certain evidence submitted by the tenant had
"no probative value," was hearsay, and\or was irrelevant. The only
evidence submitted by the tenant whose truthfulness was
specifically disputed is the tenant's "fourth exhibit, an alleged
letter from a previous landlord of the premises," which the owners
argued lacks verification and "appears fraudulent" because the
signature is "inappropriately placed and ostensibly reflects the
act of forgery." In addition, the letter was alleged to be
"ambiguous" since it refers to the tenant as a "Mrs." regarding
February, 1966, which was before she was married. Furthermore, the
owners alleged that the tenant's name was "blatantly misspelled" in
the letter and this error "was left uncorrected."
The Commissioner hereby declines to revoke the Administrator's
first order and also finds that the Administrator in the second
proceeding was correct in not doing so.
The letter in question is typewritten, dated February 28, 1986,
and states in part: "In February, 1966, I rented [the subject
apartment] to Mrs. Edda Suarez... Mrs. Suarex (sic) has been
living at the same address for twenty years." The letter is signed
directly below rather than directly above the typed name of the
prior owner. The fact that the letter refers to the tenant by her
married name in no way proves its falsity. The letter was written
in 1986 when the tenant was married, and is therefore , analogous
to the statement "President Lincoln was born in Illinois" which is
not ambiguous even though he was not President at the time of his
birth. Nor does the location of the signature or the typographic
error prove the falsity of the letter. Furthermore, the
Commissioner notes that an almost identical letter was submitted by
the tenant in the first proceeding (without the typographical
error) and was signed by the spouse and co-owner of that prior
owner, thus corroborating the letter in question.
The only documentary evidence the owners submit in support of
their claim that the first order had been based on false evidence
is an affidavit, dated October 24, 1990, from the prior owner who
held the subject building after the ownership of the owners who
submitted letters on behalf of the tenant. In this affidavit the
prior owner alleges, in part, that in 1967 "the tenant in apartment
Docket No BF610411RO
2R at 1159 Fteley Avenue was Clara Garcia [the mother of the tenant
herein]. In 1979, Edda Garcia began to physically occupy apartment
2R on a daily basis."
This affidavit is contradicted by the affiant's statements in
a different proceeding in which the affiant was herself attempting
to decontrol the subject apartment. In that proceeding (2CDR37118)
the prior owner-affiant acknowledged that the tenant had lived in
the subject apartment for all but two years of the 1969-1979
period. [In response the tenant submitted a statement from a
former employer indicating she had lived in the subject premises in
1967, and a record from Fordham University indicating that she
lived in the subject apartment during the fall term of 1974, which
term was apparently during the two years period the prior owner had
alleged without proof that the tenant was not in occupancy. The
two year period was described as "some two years later [the tenant]
moved back into the apartment" where she had resided "for about
four years" commencing "approximately two years after landlord took
title" in November, 1967. Thus, the two year period allegedly
commenced approximately six years after November 1967 and therefore
ran roughly from late 1973 to late 1975, so that the fall of 1974
was apparently included in that period.] Accordingly, the
Commissioner finds that both the affidavit in this proceeding and
the affiant's allegation in the prior proceeding deserve little, if
any, weight.
In addition, the tenant had submitted substantial evidence of
her occupancy in addition to the statements of the two prior
owners. Furthermore, the owner-petitioners have not offered any
explanation why such an affidavit could not have been presented in
the first proceeding. Moreover, unfortunately, conflicts in
evidence are common in many, if not all, adversarial proceedings.
For all these reasons the Commissioner hereby finds that there was,
and is, insufficient evidence to support the drastic remedy of
revoking a prior proceeding on the basis of allegedly false
evidence.
Finally, the Commissioner notes a different, compelling reason
why these petitions must be denied. On October 25, 1988, the New
York Court of Appeals issued McMurray v. DHCR, 72 N.Y. 2d 1022, 534
N.Y.S. 2d 924, motion for reargument or reconsideration denied, 73
N.Y. 2d 918, 539 N.Y.S. 2d 302. In that proceeding, the DHCR had
issued a certificate of eviction and the tenant appealed. That
appeal was dismissed by the Supreme Court. The Appellate Division
held that since the tenant's occupancy reached the 20 year mark
after that dismissal but before the Appellate Division's decision,
the tenant was protected from eviction, notwithstanding the fact
that the DHCR had issued the certificate of eviction before the 20
year period had ended, and notwithstanding the "long and tortured
administrative history" in that proceeding, absent undue delay by
the tenant.
The Court of Appeals affirmed the Appellate Division's
decision, noting that the same result would be required if either
of the other two protecting factors (reaching 62 years of age or
disability) had occurred while the proceeding was still pending
before the courts. Accordingly, since the record shows that the
Docket No BF610411RO
tenant herein is now 62 years or older, no certificate of eviction
can be issued by the DHCR and if one were issued it could not be
honored by a court (a necessary step for eviction). Her birth
certificate, submitted to the Administrator in the first
proceeding, shows her date of birth to be August 8, 1929. (A more
legible copy appears in file Number 2CDR37118.)
Accordingly, the owners' statement in the second petition
herein that: "Since the tenant was not 62 years of age or older
when the instant application was presented, the Administrator is
required to issue a certificate of eviction to the landlord" is
without merit.
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations, it is
ORDERED, that these petitions for administrative review be, and
the same hereby are, denied, and, that the orders of the Rent
Administrator be, and the same hereby are, affirmed.
ISSUED:
Joseph A. D'Agosta
Deputy Commissioner
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