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
|
