Docket No. BE 220161-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


          ------------------------------------X
          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NO.BE 220161-RO

                                                  DISTRICT RENT              
                                                  ADMINISTRATOR'S DOCKET     
                                                  NO.AA 220003 OE 
                                                                            
                    
          Ahmed B. Anasseri        PETITIONER
          ------------------------------------X

            ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

              On May 19, 1987, the above-named landlord filed a petition for 
          administrative review of an order issued on April 20, 1987 by the 
          District Rent Administrator concerning the housing accommodation 
          known as Apartment 8, 372 Baltic Avenue, Brooklyn, New York.

              The Commissioner has reviewed all of the evidence in the record 
          and has carefully considered that portion of the record relevant to 
          the issues raised by the petition for review.

              This proceeding was commenced by the filing of an "Owner's 
          Application for Eviction," on January 9, 1986, with the Division of 
          Housing and Community Renewal (DHCR).  The application alleged that 
          the landlord's apartment was overcrowded as the landlord, the 
          landlord's wife, the landlord's two daughters and two sons, and the 
          landlord's mother all resided within the same apartment.  The 
          application sought to evict the subject tenant so that the 
          landlord's mother and two sons could occupy the subject apartment.

              The tenant's answer, dated May 5, 1986, alleged that as a 
          matter of law the landlord may not evict the tenant for the purpose 
          of using the apartment for his personal use, as the subject tenant 
          has been residing in the subject apartment for twenty years; that 
          the landlord was not acting in good faith as there was a vacant 
          rent-stabilized apartment available for the landlord to use, and 
          that a previous order had been issued denying the landlord's 
          request for evicting the subject tenant.













          Docket No. BE 220161-RO

              To the answer the tenant attached a copy of a letter written by 
          the subject owner to the subject tenant, dated November 22, 1985, 
          in which the owner offered to rent the subject tenant a vacant 
          rent-stabilized apartment (Apartment No. 7) in the subject building 
          for $400.00 per month, so that the landlord's mother may take 
          possession of the subject apartment.

              Also attached to the tenant's answer is a copy of an order 
          issued by the New York City Department of Rent and Housing 
          Maintenance-Office of Rent Control,(the predecessor agency of the 
          rent control bureau of DHCR) issued under Docket No. 
          2E15343, which denied an earlier landlord's application to evict 
          the subject tenant on the grounds that the subject landlord did not 
          show that the eviction was in good faith.

              The Administrator requested that the Hearing Bureau of the 
          D.H.C.R. conduct a hearing on the issues of, among other things, 
          whether the landlord is entitled to occupancy of the subject 
          apartment based upon a immediate and compelling necessity, and 
          whether the landlord was acting in good faith.

              A hearing was held on March 10, 1987.  The Administrative Law 
          Judge made the following determination:
               
               1) That at the time the petition was filed, there was a 
          vacancy in the subject building (Apartment No. 7) but for economic 
          reasons the landlord did not choose to occupy it;

               2) That in order to obtain a certificate of eviction in this 
          proceeding, the landlord must establish that he seeks in good faith 
          to recover possession of the subject apartment, and has an 
          immediate and compelling necessity for his own personal use and 
          occupancy for his immediate family; and that

               3) There existed no immediate and compelling necessity for the 
          landlord to obtain possession of the subject premises, as there 
          existed a vacant, suitable apartment which the landlord failed to 
          occupy.

              In the order under review herein, the Administrator denied the 
          landlord's application.  The Administrator found that there existed 
          no immediate and compelling necessity for the landlord to obtain 
          possession of the subject apartment, as there was a vacant, 
          suitable apartment available in which the landlord failed to 
          occupy.

              In this petition the landlord asserts that he seeks possession 
          of the subject apartment solely for the use and occupancy of the 
          landlord's mother and father.  The landlord further asserts that 
          his apartment is overcrowded; that there had in fact been a vacancy 
          in the subject building of a rent-stabilized apartment in which the 
          prior tenant's rent was $400.00 per month, and it was offered to 






          Docket No. BE 220161-RO

          the subject tenant who refused, and the aforementioned apartment 
          was rented to another tenant for $572.00 per month and that the 
          landlord is not "required to utilize a decontrolled apartment to 
          alleviate the immediate and compelling necessity unduly  reducing 
          the rental income of the premises."

              After careful consideration, the Commissioner is of the opinion 
          that the landlord's petition should be denied.

              Pursuant to Section 2204.5 of the New York City Rent and 
          Eviction Regulations, a certificate of eviction "shall be issued 
          where the landlord seeks in good faith to recover possession of a 
          housing accommodation because of immediate and compelling necessity 
          for his own personal use and occupancy...."

              The landlord's assertion that he seeks the subject tenant's 
          eviction based upon an "immediate and compelling necessity, "more 
          specifically that his apartment is overcrowded, is negated by the 
          fact that the landlord had an opportunity to occupy a vacant rent- 
          stabilized apartment (Apartment No. 7) for the use of his immediate 
          family, which would have alleviated the alleged overcrowded 
          conditions in the landlord's apartment, but the landlord did not 
          occupy it due to economic reasons only.

              The Commissioner notes that it is a long standing policy of 
          D.H.C.R., that there is a presumption of lack of good faith by the 
          landlord in seeking to evict a tenant for the purpose of using that 
          tenant's apartment for the use of the landlord's immediate family, 
          when there was another apartment in that same building that is 
          vacant and available.  In order for the landlord, in this 
          proceeding, to defeat that presumption of lack of good faith, the 
          landlord has the burden of proof of showing that he would suffer a 
          severe financial hardship if he utilized the aforementioned vacant 
          apartment for his immediate family, instead of using the subject 
          apartment.

              As the landlord has not submitted any evidence showing that he 
          would suffer a severe financial hardship in utilizing the vacant 
          apartment, but he only makes a bare assertion that he would receive 
          less rental income, the Commissioner finds that the landlord has 
          failed to rebut the presumption of lack of good faith in seeking to 
          evict the subject tenant.

              Accordingly, the Commissioner finds that the landlord lacked 
          good faith in seeking to evict the subject tenant.

              The Commissioner notes that the rent agency had already denied 
          the landlord's application for a certificate of eviction of the 
          subject tenant in a earlier proceeding, issued under 
          Docket No. 2E15343.  
              The Commissioner finds that for all of the aforementioned 
          reasons, the landlord's petition should be denied.












          Docket No. BE 220161-RO


              As to the tenant's allegation that he has resided in the 
          subject apartment for over twenty years, the Commissioner finds 
          that that allegation in this proceeding has not been substantiated.  
          The Commissioner notes that if the above-mentioned allegation were 
          substantiated the landlord's petition would have been denied 
          automatically, and as a matter of law, pursuant to Section 
          2204.5 (a) of the City Rent and Eviction Regulations.

              THEREFORE, in accordance with the City Rent Control Law and the 
          Rent and Eviction Regulations, it is

              ORDERED, that this petition be, and the same hereby is, denied, 
          and that the Rent Administrator's order be, and the same hereby is, 
          affirmed.

          ISSUED:



                                                                           
                                              Joseph A. D'Agosta
                                              Acting Deputy Commissioner
    

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