DOCKET NOS.: DA910241RO, et al.
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 :
APPEAL OF ADMINISTRATIVE REVIEW
: DOCKET NOS. DA910241RO DA910251RO
DA910242RO DA910252RO
BERRY ESTATES, INC., : DA910243RO DA910253RO
DA910244RO DB910064RO
PETITIONERS : DA910245RO DB910065RO
------------------------------------X DA910246RO DB910066RO
DA910247RO DB910067RO
DA910248RO DC910372RO
DA910249RO DJ910358RO
DA910250RO
DISTRICT RENT OFFICE
DOCKET NOS. SBD910001R SBB910036R
SBB910027R (SBH910001R)
SBB910003R SBB910024R
(SBH910003R) (SBH910009R)
SBB910041R SBB910014R
SBE910003R SBB910017R
(SBI910004R) SBB910019R
SBA910001R SBB910009R
(SBH910005R) [SBH910004R,
SBB910023R 0009441]
[SBH910004R, SBB910028R
SBH910004R(A)] SBB910008R
SBB910032R SBB910010R
SBB910026R SBB910002R,
(SBH910002R), respectively
ORDER AND OPINION DENYING 19 PETITIONS FOR ADMINISTRATIVE REVIEW
The above named petitioner-owner timely filed or refiled nineteen Petitions
for Administrative Review against orders issued by the Rent Administrator, 99
Church Street, White Plains, New York, concerning housing accommodations
known as various apartments, Blueberry Hill Apartments, Kearsing Parkway,
Monsey, New York, wherein the Rent Administrator determined, in part, that
the 1986 renewal lease for each of the subject tenants should have had a
commencement date of October 1, 1986, rather than the September, 1986 date
stated in the leases. (The difference was important because the Rent
Guidelines Order in effect commencing October 1, 1986 provided for lower rent
increases than the prior Order.)
The applicable section of the Tenant Protection Regulations is Section
2503.5.
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 administrative appeals.
In these petitions the owner contends that the Rent Administrator's Orders
are incorrect and should be modified because the leases offered the tenants
DOCKET NOS.: DA910241RO, et al.
herein were on the same terms and conditions as the prior leases because the
rent payment dates thereof remained the first of each month. The owner notes
that the Administrator's orders herein explicitly followed a prior decision
based on identical facts involving the same apartment complex, which decision
had been upheld by the Supreme Court, Rockland County, in In re Blueberry
Hill Corp., Index No. 230/88, May 16, 1988.
However, the owner stated that that court decision was then under appeal and
the owner was therefore filing the instant appeals "in order to preserve its
rights," i.e., in the event that the owner prevailed in that then-pending
appeal.
The Commissioner is of the opinion that these petitions should be denied.
The above-cited Supreme Court decision was affirmed by the Appellate
Division, Second Department, in In the Matter of Blueberry Hill Corp., 154
A.D.2d 670, 546 N.Y.S.2d 670 (Oct. 10, 1989), wherein the court stated, in
relevant part:
"The [DHCR's] regulations provide that "[w]here a
landlord fails to offer a renewal lease in accordance
with [9 NYCRR 2502.4(a)] *** such lease whenever it is
offered shall commence *** on the first rent payment date
commencing 90 days after the date that the landlord does
offer the lease" (9 NYCRR 2503.5[b]). It is uncontro
verted that the landlord did not offer a lease renewal as
required by 9 NYCRR 2503.5(a), and waited until June 20,
1986, to offer a renewal lease, and that the tenant
always paid rent on the first of the month. The DHCR's
determination that the lease term commenced on October 1,
1986, rather than September 21, 1986, and that the
tenant's rent increase should be calculated based on the
guideline which went into effect October 1, 1986, was not
an unreasonable or irrational interpretation of its
regulations, and must be upheld (citation omitted.)"
Accordingly, because the issues raised in the present nineteen substantially
identical petitions have been previously decided against the owner and
affirmed by the Appellate Division, these petitions are hereby denied under
the doctrines of collateral estoppel and stare decisis.
THEREFORE, in accordance with the Tenant Protection Act and Regulations, it
is
ORDERED, that these petitions be, and the same hereby are, denied, and the
Rent Administrator's orders be, and the same hereby are, affirmed
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
|
