Adm. Review Docket No.: BH 910282-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.: BH 910282 RO
B. M. B. ASSOCIATES, RENT ADMINISTRATOR'S
ORDER NO.: EBF-8-1-0006-E
PETITIONER TENANT: Rosalind Weinman
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 28, 1987 the above named petitioner owner filed a Petition
for Administrative Review against an order of the Rent Administrator
issued July 28, 1987. The order concerned housing accommodations
known as Apartment Drake 3F located at 235 Garth Road, Scarsdale,
N.Y. The Administrator terminated the tenant's complaint of
improper eviction after finding that the petitioner failed to comply
with Section 35 of the Tenant Protection Regulations.
The Commissioner has reviewed the record and carefully considered
that portion of the record relevant to the issues raised by the
appeal.
The tenant commenced this proceeding by filing a complaint on June
9, 1987 in which she alleged that the owner was threatening to evict
her as evidenced by a letter from the owner telling her that
pursuant to Item R of the Second Amendment to the Offering Plan, the
tenant's lease expiring August 31, 1987 would not be renewed. The
tenant indicated by the complaint that she took occupancy of the
subject apartment on September 15, 1974.
In answer to the complaint, the owner stated that the building in
question was converted to cooperative ownership under an eviction
plan on September 1, 1982 and that all non-purchasing tenants were
permitted to remain under ETPA (Emergency Tenant Protection Act of
1974) as tenants for five additional years. Petitioner alleged that
the tenant's complaint was merely a delaying tactic. A copy of the
relevant portion of the Offering Plan was submitted.
The Administrator, after summarizing the relevant facts, made the
following findings:
"Section 35 (c)(8) of the Regulations which
refers to leases for housing accommodations in
cooperative or condominium owned buildings or in a
building for which the Attorney General has
accepted for filing an offering plan to convert the
building to cooperative or condominium ownership
states that new or renewal leases may contain a
clause permitting termination prior to the
expiration of the terms by a subsequent owner who
Adm. Review Docket No.: BH 910282-RO
has purchased the rented apartment, if such clause
provides:
That the termination clause shall only be
effective for the purpose of permitting the rented
apartment, following surrender of possession by the
tenant, to be occupied immediately by such owner
under the cooperative or condominium building
ownership, or by a member of that owner's immediate
family as defined in the Tenant Protection
Regulations; and
That such owner must serve on the tenant a notice
in writing by certified mail no less than 90 days
prior to the date of termination of the lease,
reciting the date of termination and the full name
and address of the owner or the member of the
owner's immediate family who is to take occupancy
of the rented apartment, and his or her
relationship to the owner; an exact copy of such
notice must also be filed with an affidavit of
service with the Division within seven days after
such service.
Based on the evidence in the record, it is determined
that the landlord has failed to comply with Section 35 (c)
(8) of the Regulations.
Landlord is instructed that no action to evict the
Tenant can proceed until the landlord complies with
Section 35 (c)(8) of the Regulations. The tenant need
not vacate unless ordered to do so by a court of compet-
ent jurisdiction."
The Administrator then terminated the proceeding.
On appeal the owner argues that the conversion of the building to
cooperative ownership pursuant to the Section 352-eee of the General
Business Law, superceded the tenant's rights under ETPA and the
Tenant Protection Regulations. The plan was declared effective
September 1, 1982 and according to the owner, since the ETPA in
effect at that time permitted a non-purchasing tenant to remain in
the apartment for two years, DHCR had no jurisdiction over this unit
as of September 1, 1984. Petitioner further states that, even
assuming arguendo that DHCR retains jurisdiction the Administrator's
application of Section 35 of the Regulations was improper. This
section deals with leases terminating prior to expiration for the
purposes of immediate owner occupancy, and this tenant's lease
expires August 31, 1987.
Adm. Review Docket No.: BH 910282-RO
The owner finally argues that the tenant is in violation of the
offering plan and a signed document wherein the tenant agreed to
waive her rights in consideration for the right to remain in the
apartment for an additional three years. Petitioner also asserts
that the Administrator's order is invalid because it did not contain
an order number.
The tenant responded to the petition, through counsel on November
18, 1987. In that response the tenant stated that she is 63 years
old and a Social Security Disability recipient. The tenant claims
an exemption from Section 352-eee of the General Business Law as an
"eligible handicapped person."
After a careful review of the evidence in the record the
Commissioner is of the opinion that the petition should be denied.
The provisions of ETPA are applicable to cooperative apartments (see
Thornycraft Tenants Corp. v. Eastchester 148 AD2d 729, 539 NYS2d 467
[2nd Dept. 1989]; Central Westchester Tenants Corp. v. Iagallo 136
AD2d 53, 526 NYS 2d 113 [2nd Dept. 1988]). The centerpiece of
petitioner's argument is that the eviction plan, adopted under the
auspices of Section 352-eee superceded the ETPA statute and
regulations issued thereunder. Petitioner is not correct. In
McVann v Myers 131 Misc 2d 167, 497 NYS 2d 819 (City Ct. Yonkers,
1985) aff. 525 NYS 2d 750 (2nd Dept. 1987), the petitioner advanced
the identical argument before the court. Responding to this
contention the court stated:
"Section 352-eee of the General Business Law
does not have the effect of superceding the ETPA
since Section 5 of ETPA does not contain an
exception for cooperatives and condominiums.
The only reason that Section 352-eeee of the
General Business Law has the effect of exempting
rental apartments in cooperatives and
condominiums is that Section YY51-3.0(a) of the
Rent Stabilization Law applicable to New York
City, provides that this law shall apply to
Class A multiple dwellings not owned as a
cooperative or condominium, except as provided.
There is no similar language in the ETPA which
incorporated Section 352-eee, or exempts
cooperatives and condominiums from coverage as
does the Rent Stabilization Law.
This fact, combined with the knowledge that
neither the City of Yonkers nor Westchester
County has specifically exempted cooperatives
from the application of the ETPA, results in the
determination that it was not the legislative
intent to protect cooperatives from the
application of the ETPA.
Since the Second Department has affirmed the Yonkers City Court and
since the subject apartment lies within the Second Department, the
Court's determination is binding on the case herein.
Adm. Review Docket No.: BH 910282-RO
Petitioner is correct in that Section 35 [now Section 2502.5(c)(8)]
of the Tenant Protection Regulations is inapplicable to the facts of
this case. This section was cited in the Administrator's order
because it specifies the only circumstances in which leases for
housing accommodations in cooperative or condominium-owner buildings
may contain a termination clause. That section permits a subsequent
purchaser of the apartment to utilize a termination clause when the
apartment is to be occupied by such owner or by a member of that
owner's immediate family. In the absence of such a termination
clause, the eviction of this tenant is governed by Part 2504 of the
Tenant Protection Regulations which specifies the restrictions on
the removal of a tenant and identifies the permissible grounds for
evictions and none of those grounds are satisfied herein.
Petitioner's argument that the tenant somehow relinquished her ETPA
rights by executing certain documents permitting her to remain in
the apartment is incorrect. Pursuant to 9NYCRR 2500.12, "An
agreement by the tenant to waive the benefit of any provision of the
Act or these Regulations is void." The tenant could not waive her
protection from improper eviction. By reason of the Commissioner's
decision herein, it is unnecessary to rule on the tenant's
arguments set forth in the answer to the petition. The
Administrator's order is affirmed.
THEREFORE, pursuant to the Emergency Tenant Protection Act and
Tenant Protection 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:
ELLIOT SANDER
Deputy Commissioner
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