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


          -------------------------------------X
          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
          -------------------------------------X


            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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