Docket Number: BK-710377-RO
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 NO.: BK-710377-RO
:
TRES REYES REALTY INC., DRO DOCKET NO.: BF-730001-RV
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 1, 1987, the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on June 29, 1987
by the Rent Administrator at the 50 Clinton Street, Hempstead
District Rent Office, concerning the housing accommodations known as
253 Roslyn Road, Roslyn Heights, New York, Apartment A, wherein the
Administrator directed the owner to offer the tenant a renewal
lease.
The applicable law is Section 2503.5 of the Tenant Protection
Regulations.
The issue in these proceedings is whether the Administrator's order
was correct.
The tenant commenced these proceedings by filing a complaint
alleging that the owner had failed to offer the tenant a renewal
lease, as the owner wanted all the apartments in the building for
his large family.
Acknowledging that he was not listed on the expiring lease, a copy
of which was submitted with the complaint, the tenant submitted a
copy of his certificate of marriage to the named tenant, issued by
the Town of North Hempstead on April 3, 1986, as well as copies of
cancelled rent checks from the complainant accepted by the owner
from April 29, 1987.
Copies of the tenant's complaint were served on the owner. The
owner's responded, on July 23, 1987, indicating that the owner
needed the accommodations for his family and offering to waive the
rent for four months to facilitate the tenant's relocation.
Based on the evidence in the record on June 29, 1987, the
Administrator issued an order finding the owner in violation of
Section 2503.5 (recodification of Section 45) of the Tenant
Protection Regulations by not offering the tenant a lease renewal.
Docket Number: BK-710377-RO
The Administrator also directed the owner to offer the tenant a
lease renewal and to pay the tenant a penalty of $250.00.
A supplement to the owner's answer, dated July 1, 1987, after the
Administrator's order issued, could not be considered by the
Administrator. Therein the owner asserted that the tenant had paid
the rent with a personal check showing a different current address.
In the petition, the owner initially stated that he regretted any
inconvenience caused, and advised that the tenant would receive an
offer for a new lease. However, in a supplement dated November 2,
1987 the owner asked review of the matter, noting that the lease
expiring on June 30, 1987 did not list the complainant as a tenant.
The tenant responded, as below, that he had resided with the named
tenant since 1984, reiterating that they had been married in 1986,
and that the owner had been accepting his rent checks. The tenant
added that the tenant-of-record had passed away in February 1987. A
copy of the death certificate was attached.
After careful consideration, the Commissioner is of the opinion that
the petition should be denied.
Section 2503.5(d) of the Tenant Protection Regulations, as amended
effective November 1989, prohibits the eviction of an occupant, who
is a member of the tenant's immediate family as follows:
(d) (1) Unless otherwise prohibited by
occupancy restrictions based upon income limitations
pursuant to federal, state or local law, regulations
or other requirements of governmental agencies, if an
offer is made to the tenant pursuant to provisions of
subdivision (a) and such tenant has permanently
vacated the housing accommodation, any member of such
tenant's family, as defined in subdivision (n) of
section 2500.2 of this Title, who has resided with the
tenant in the housing accommodation as a primary
residence for a period of no less that two (2) years,
or where such person is a "senior citizen," or a
"disabled person" as defined in paragraph (4) of this
subdivision, for a period of no less than one (1) year,
immediately prior to the permanent vacating of the
housing accommodation by the tenant, or from the
inception of the tenancy or commencement of the
relationship, if for less than such periods, shall be
entitled to be named as a tenant on the renewal lease.
[Emphasis added]
Section 2500.2(m) and (n) define the tenants immediate family and
family members, respectively, as
(m) Immediate family.
Husband, wife, son, daughter, grandson,
granddaughter, stepson, stepdaughter, father, mother,
father-in-law, mother-in-law, grandfather,
grandmother, stepfather or stepmother of the owner.
Docket Number: BK-710377-RO
(n) Family member.
(1) Husband, wife, son, daughter, grandson,
granddaughter, stepson, stepdaughter, father, mother,
father-in-law, mother-in-law, grandfather, grandmother,
stepfather, stepmother, brother, sister, nephew,
niece, uncle, aunt, son-in-law, or daughter-in-law of
the tenant; or
Section 2503.5(a) in effect on the issue date of the Administrator's
order, provided that every owner notify the "tenant in occupancy" of
the termination of the tenant's lease demand offer to renew prior to
the end of the lease term. Section 2500.2 of the regulations
defined a tenant as "A tenant, subtenant, lessee, sublessee, or
other person entitled to the possession of to the use or occupancy
of any housing accommodations." However, the regulations were
otherwise silent as to the rights of family members to renewal
leases.
In accordance with Division policy, the issues presented herein are
determined pursuant to current regulations.
The record below and on appeal adequately established that the
complaining tenant was the spouse of the tenant-of-record, as of
April 3, 1986, until the tenant-of-record's demise or February 5,
1987 and that a marital relationship existed sufficient to entitle
the present occupant to a renewal lease in his own name.
THEREFORE, in accordance with the applicable provisions the
Emergency Tenant Protection Act of 1974, the Tenant Protection
Regulations, Chapter 403, Laws of 1983, as amended by Chapter 102,
Laws of 1984, and Operational Bulletin 84-1, it is
ORDERED, that this petition be, and the same hereby denied and that
the Administrator's order is affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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