Adm. Review Docket Nos.: CB910377RO & HF910117RO






                       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    SJR 7192
IN THE MATTER OF THE ADMINISTRATIVE
APPEALS OF                              ADMINISTRATIVE REVIEW
                                        DOCKET NOS. CB910377RO
                                         & HF910117RO
    OLD COURT REALTY CORP.,
                                        DRO DOCKET NOS.
                                        BJ810010-E & FA910102-R

                                         Tenant: ANN HOWARD
                    PETITIONER
------------------------------------X


ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW

On  February 16, 1988, the above named petitioner-landlord timely
refiled  a  Petition for Administrative Review (PAR)  against  an
order  issued on November 19, 1987, by the Rent Administrator  at
55  Church  Street,  White Plains, New York,  concerning  housing
accommodations known as apartment number 2A at 151 East  Prospect
Avenue,   Mount  Vernon,  New  York,  wherein  the  Administrator
determined that Ann Howard is the tenant of the subject apartment
and  directed  the  landlord to offer  her  a  renewal  lease  in
accordance with Section 2503.5 (formerly known as Section 35)  of
the  Tenant  Protection Regulations (TPR). Administrative  Review
Docket Number CB910377RO was assigned to that PAR.

On  June  28,  1993, the petitioner-landlord timely filed  a  PAR
against   an  order  issued  on  May  27,  1993,  by   the   same
Administrator; concerning the same apartment. In said order,  the
Administrator  determined the maximum  rent  the  landlord  could
collect from the tenant from October 1, 1987 through May 31, 1993
and directed the landlord to refund overcharges in the amount  of
$    6,623.98,   including   interest   from   April   1,   1984.
Administrative  Review Docket Number HF910117RO was  assigned  to
that PAR.

Subsequently,  the  landlord filed an Article  78  Proceeding  in
Supreme Court, Westchester County, seeking judicial review of the
Division's deemed denial of the aforesaid PARs.

Thereafter, pursuant to a stipulation, the landlord's Article  78
Proceeding was remitted to the Division.

Pursuant  to  9NYCRR2510.1.(c),  the  landlord's  two  PARs   are
consolidated herein.

The  Commissioner has reviewed all of the evidence in the  record
and  has  carefully  considered  that  portion  of  the  evidence
relevant to the issues raised in these administrative appeals.

The  proceeding assigned District rent Office (DRO) Docket Number
BJ810010-E was originally commenced by the filing, in October  of
1987, of an Individual Tenant Statement of Complaint wherein  the
tenant alleged, in substance, that the landlord was attempting to
evict her illegally (the Wrongful Eviction Complaint). The tenant
further alleged that she had moved into the subject apartment  in
October of 1977 with her grown daughter, Shelley Howard; that she
and  her daughter shared the rent and other expenses, but Shelley
Howard  had  assumed  the responsibility  for  dealing  with  the
landlord  while  the  tenant  took  care  of  the  utilities  and
purchased  the  other household necessities. The  tenant  alleged
that  Shelley Howard was employed at the time of the renting  and
the  tenant  was  living  on savings and a  pension.  The  tenant
further  stated  that she had assumed that her name  was  on  the
lease  since she had filled out the initial apartment application
forms.

The  tenant  further alleged that on September 27, 1987,  Shelley
Howard  packed  her belongings and, refusing to discuss  anything
with  the  tenant, vacated the apartment. The tenant also  stated
that  when she contacted Shelley Howard's employer, she was  told
that  Shelley  Howard was no longer employed there and  that  the
tenant  has not seen or heard from her daughter since. The tenant
further states that the next day she wrote to the landlord asking
the landlord what the rent was so that she could pay the rent due
on October 1, 1987. The tenant went on to state that she received
a reply from the landlord in its letter dated September 30, 1987,
wherein  the  landlord  stated that it had made  arrangements  to
renovate  the apartment and demanded that she vacate  within  ten
days.  With the Wrongful Eviction Complaint, the tenant submitted
copies  of  the  aforesaid  correspondence  and  proofs  of   her
residence in the subject apartment since October of 1977.

In  answering  the  Wrongful  Eviction  Complaint,  the  landlord
asserted, in substance, that Shelley  Howard, was the only  named
tenant on the lease; that the landlord had made a timely offer of
lease  renewal  in  compliance with all  of  the  regulations  to
Shelley Howard and Shelley Howard had failed to renew timely and,
in  fact, had advised at least one member of the building's staff
that she was vacating; and that Shelley Howard had turned in  the
keys  to  the  apartment; and that the landlord  had  made  other
provisions  for  the  occupancy of the  apartment.  The  landlord
further argued that this was not a case where a named tenant  was
attempting to give rights to a family member, but where the named
tenant had terminated the tenancy. The landlord also argued  that
the tenant's allegations confirm the landlord's position that Ann
Howard was not the tenant but merely lived with the named tenant.

In  the  order  issued  under DRO Docket Number  BJ810010-E,  the
Administrator  found  that  Ann Howard  is  the  tenant  of  this
apartment  and  is  entitled  to  a  renewal  lease;  which   the
Administrator directed the landlord to offer to her.

In   the   PAR  assigned  Administrative  Review  Docket   Number
CB910377RO, the landlord, in substance, reasserted what it had in
answering  the Wrongful Eviction Complaint, adding the  assertion
that  Ann Howard had not mentioned nor thought about taking  over
the  apartment  until  after  the  lease  term  had  expired,  on
September 30, 1987. The landlord, further, claims that it is  not
obligated to offer separate lease renewals to each occupant of an
apartment, but only to the person named in the lease.

The tenant answered the PAR, in substance, as follows. The tenant
states that it was the landlord's rental agent who decided to put
only  Shelley  Howard's name on the lease; that it  was  not  Ann
Howard's decision to do so. The tenant also stated that  she  had
no  knowledge of the lease renewal process and Shelley Howard had
never  told her of her intention to move out. The tenant  further
charges  that  as  soon as Shelley Howard  moved  out,  she  (Ann
Howard) wrote to the landlord to inquire as to the rent and  that
the  landlord's letter dated September 30, 1987 acknowledging her
letter,  proves that the tenant acted before the lease  term  had
expired  and as soon as she became aware of the need to take  any
such  action. The tenant also states that the landlord should  be
directed to provide her with a lease in her name.

On  February  23,  1994, DHCR staff sent the  landlord  a  Notice
affording it the opportunity to submit evidence of its claim that
it  had  given Shelley Howard a timely lease renewal notice  that
complied  with the regulations. In response thereto, the landlord
submitted,  among  other things, copies of  documents  which  the
landlord  stated were a copy of the vacancy lease dated September
21,  1977,   a  copy  of  the renewal lease  form  for  the  term
commencing October 1, 1986 and expiring on September 30, 1987 and
a  copy  of the lease renewal form sent to Shelley Howard,  dated
June 22, 1987.
The  tenant  was  afforded  an  opportunity  to  comment  on  the
submissions made in response to the Notice of February 23,  1994.
In  her  comments, the tenant, in substance, states that  Shelley
Howard  was not empowered to act on her behalf so as to terminate
her  tenancy. The tenant also states that the landlord's  actions
are  motivated  by a desire to have the tenant vacate  since  the
tenant,  a  senior  citizen, has no interest  in  purchasing  her
apartment; that the current landlord converted the building to  a
co-op soon after purchasing it in 1987; and that the landlord has
engaged in a course of conduct calculated to drive her out of the
apartment;  and that said course of conduct includes  harassment,
refusal of services and overcharging/over billing on her rent.

The   proceeding  assigned  DRO  Docket  Number  FA910102-R   was
originally  commenced by the filing, in December of  1990,  of  a
Tenant's  Complaint  of  Rent Overcharge and/or  Excess  Security
Deposit (the Overcharge Complaint) wherein the tenant alleged, in
substance, that the landlord had refused to accept her tenders of
rent  for two and one half years and then presented her  with  an
excessive bill for $10,459.20 which the tenant paid; and that the
landlord  had persisted in ignoring the Administrator's order  of
November  19, 1987 (DRO Docket Number BJ810010-E), which directed
the landlord to offer the tenant a renewal lease.

The landlord answered the Overcharge Complaint, in substance,  as
follows.  The  landlord stated that the Overcharge Complaint  was
the same as the Wrongful Eviction Complaint and the complaint the
tenant  had  filed  under  DRO Docket BJ810008-RV  [Complaint  of
Refusal  to  Offer a Renewal Lease] and should  be  dismissed  as
duplicative;  the  landlord  argued  that  Shelley   Howard   had
affirmatively  declined to renew; and that  legal  considerations
made  it  impossible  to give the tenant  a  lease  although  the
landlord desired to resolve this controversy.

In subsequent submissions under DRO Docket Number FA910102-R, the
tenant  argued  that  under both BJ810010-E and  BJ810008-RV  the
Administrator  had determined that the tenant was entitled  to  a
renewal  lease; that in the Order and Determination issued  under
BJ810008-RV,  the  Administrator had determined  that  until  the
landlord  offered the tenant a renewal lease in  accordance  with
the  regulations, the rent would remain the rent under  the  last
renewal lease, $369.71 and that the landlord's filing of the  PAR
assigned Docket Number CB910377RO did not stay the effect of that
Order and Determination as to the current rent; nevertheless, the
landlord  continued to charge the tenant an amount in  excess  of
that  sum.  The  tenant  argued that, therefore,  the  Overcharge
Complaint  should not be dismissed as it sought a different  form
of  relief  and  its filing was made necessary by the  landlord's
continued  refusal to obey two prior orders issued by  the  DHCR.
The  tenant submitted copies of documents represented to  be  the
landlord's demands for payment of use and occupancy in the sum of
$10,459.20  and $7,134.04, respectively; and the tenant's  proofs
of  payment. The tenant also claimed that the landlord  continued
to increase the rent.

In  submissions  made subsequent to its answer to the  Overcharge
Complaint,  the landlord stated, in substance, it had  registered
the  subject apartment in 1987 and served Shelley Howard  with  a
copy of said apartment registration.

In  the  Order  and  Determination issued under  FA910102-R,  the
Administrator  determined that the landlord had  overcharged  the
tenant  as the landlord had charged the tenant increases in  rent
while  failing  to  comply with the directives issued  under  DRO
Docket  Numbers  BJ810010-E and BJ810008-RV to  issue  a  renewal
lease  to  the  tenant and directed the landlord  to  refund  the
overcharges noted above.

In  the  PAR  (Administrative Review  Docket  Number  HF910117RO)
against  the overcharge order, the landlord states, in substance,
that  the  Administrator erred in issuing the order under  Docket
Number   FA910102-R  without  considering  that,  Shelley  Howard
affirmatively  refused to renew the lease term which  expired  on
September  30,  1987,  the  landlord  is  still  waiting  for   a
determination  of  the  PAR  it  filed  against  the  Order   and
Determination  issued  under Docket Number  BJ810010-E;  and  the
tenant  has  not  been  current  in  her  payments  for  use  and
occupancy. The landlord also asserted that the tenant has  abused
the power of the DHCR and other government agencies to harass the
landlord into letting her live rent free.

In  opposing  said  PAR, the tenant answered,  in  substance,  as
follows.   The  landlord  has  used  various  tactics,  including
harassment involving threats of violence in an attempt  to  cause
the  tenant to vacate the  apartment so the landlord can sell it.
The  tenant denies that she has ever refused to accept a properly
offered lease renewal. The tenant contends that the landlord  had
refused  to  give  tenant a lease and had unlawfully  demanded  a
payment of $4,355.54 from her, saying that if tenant paid it, the
landlord  would give the tenant a lease. The tenant charges  that
that  offer  had just been another form of illegal coercion.  The
tenant  further stated that after the order under  Docket  Number
FA910102-R  had been issued, a lease was offered to  her  by  the
landlord  and  she signed it right away[1]. The tenant,  further,
argues that the landlord's claim that the tenant is abusing   the
power of the DHCR and other agencies is an attempt to prevent the
tenant  from enforcing her rights against the landlord's  devious
practices.

The  Commissioner  believes that both of  these  PARs  should  be
denied and that each of the orders appealed should be affirmed.

The  Commissioner notes that the landlord's arguments in each PAR
are  founded on the landlord's position that Ann Howard  is  not,
now,  and  has  never  been a tenant of  the  subject  apartment.
Specifically, the Commissioner notes, in the PAR assigned  Docket
Number  HF910117RO, the landlord has raised no objection  to  the
manner  in  which  the  overcharges  found  under  Docket  Number
FA910102-R  were  calculated or to the  sum  of  the  overcharges
found.  Consequently, the Commissioner finds that  a  ground  for
denying  either  of these PARs is also a ground for  denying  the
other.  The Commissioner has found that there are three  separate
grounds upon which these PARs should be denied.

First,  the  Commissioner finds that the definition of  the  term
"tenant"  in  Subsection 2500.2(h) of the TPR includes  a  family
member.  Sullivan  v.  Brevard 66 N.Y.2d  489,  498  N.Y.S.2d  96
(1985),  One Vincent Road Realty Company v. Mulqueen 541 N.Y.S.2d
(City  Ct.  of Yonkers, 1989). Therefore, the Commissioner  finds
that  the term tenant, as used in those sections of the TPR which
require  a  landlord to offer a tenant a renewal lease and  which
prescribe  the procedures for doing so (Subsection 2502.5(b)  and
Section 2503.5), applies to family members; and so applied at the
time  the  tenant's rights herein were called into  question,  on
September 30, 1987 [2].

Therefore,  the Commissioner finds that, but for the question  of
the affect of Shelley Howard's alleged actions, there would be no
question but that Ann Howard had a right to a renewal lease  upon
the expiration of the October 1, 1986 to September 30, 1987 lease
term. The landlord argues, in effect, that, assuming that Shelley
Howard had been sent a timely renewal lease notice, she could cut
off  Ann Howard's rights to the apartment by doing nothing  until
she moved out, without any prior notice to Ann Howard, three days
before  the  end of the lease term. The Commissioner  finds  that
that  argument  is  based on an untenable interpretation  of  the
language  of  TPR  Section 2503.5 as  it  read  in  1987  and  as
applicable   to   the  specific  facts  in  this   case.[3]   The
Commissioner finds that the only reasonable interpretation of the
1987  language  of Section 2503.5 to be applied  to  these  facts
warrants  a  finding  that the behavior  of  Shelley  Howard  was
atypical and antithetical to the interests of the family unit  in
question  and,  as  such, may not be given the effect  of  having
terminated the tenancy of her co-tenant, and mother.

Second,  the Commissioner finds that Shelley Howard had not  been
served  with  a  renewal  lease notice  that  complied  with  the
regulations.  Section 2503.5 of the TPR requires that  a  renewal
lease notice be sent on "a form prescribed by the division".  The
Commissioner notes that the instructions on the reverse  side  of
the prescribed form require that "In order for this Notice to  be
effective,  it  must  quote the authorized legal  regulated  rent
(column  'b' on Page 1.) The total of each entry in these columns
should  appear  as the increased new rent in column  'd'  "   The
Commissioner  notes  that the renewal lease notice  the  landlord
claims  to  have  mailed Shelley Howard was left blank  in  every
place  where  the  landlord was required to insert  the  "Present
Legal  Regulated  Rent"  (column b),  the  "Increased  New  Rent"
(column d) and the "Additional Security Deposit" (column f).  The
Commissioner therefore finds that said Notice was ineffective and
could  have  had no affect on either tenant's rights, let  alone,
Ann Howard's.

Third,  the  Commissioner finds that on December  13,  1988,  the
Administrator  issued  an  Order and Determination  under  Docket
Number BJ810008-RV wherein the Administrator determined that  Ann
Howard was the tenant of the subject apartment and entitled to  a
renewal  lease. The Commissioner further finds that the  landlord
did not appeal said Order and Determination; and that the issues,
as determined therein, are res judicata.

THEREFORE,   pursuant   to  all  of  the  applicable   laws   and
regulations, it is

ORDERED, that these Petitions be, and the same hereby are denied;
and  that  the  appealed  orders be,  and  the  same  hereby  are
affirmed.

ISSUED:


                                   Joseph A. D'Agosta
                                   Deputy Commissioner

------------------------
1. The Commissioner notes that a copy of said lease was submitted
by  the landlord. By its terms, that lease is subject to whatever
final  determination  may be made by the  Commissioner  and/or  a
court  of  competent jurisdiction having the power to review  the
Commissioner's determinations. It provides for a rent of  $369.71
and  has  an MCI Rider that could cause the rent to be  increased
during  its term (10/1/93 to 9/30/95) based on certain  specified
MCI installations.

2.  The Commissioner notes that TPR Section 2503.5 was amended in
1989,  but  that the provisions thereof which were in  effect  in
1987  are  controlling herein as the key question is:  with  what
rights  was Ann Howard vested upon the termination of the 10/1/86
to 9/30/87 lease term.

3.  Indeed,  the  Commissioner finds that the fact  that  it  was
necessary  to add, in the 1989 amendment to Section 2503.5,  that
the  sixty  day period for renewing the lease applies  to  family
members  as  well as the named tenant underscores the  fact  that
that  was not the purport of Section 2503.5 in the form in  which
it read in 1987 when applied to a case such as this.



    

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