Adm. Rev. Docket No.: EB220232RO
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.: EB220232RO
:
JACK MONTAG, DRO DOCKET NOS:
AD220017OE
PETITIONER :
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TENANTS: ROBERT & ARLENE
McMAHON
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 23, 1990, the above-named petitioner-owner timely filed
a Petition for Administrative Review (PAR) against an order issued
on January 19,1990, by the District Rent Administrator at Gertz
Plaza, Jamaica, New York, concerning the housing accommodations
known as Apartment 2 at 5912 New Utrecht Avenue, Brooklyn, New
York, wherein the Administrator terminated the proceeding commenced
by the owner's application for a Certificate of Eviction under
9NYCRR2204.9(a)(1). Said application was based on the owner's claim
that the owner requires the entire building containing the subject
apartment for his own immediate use in connection with a business
which he owns and operates in the immediate vicinity of that
building.
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 PAR.
The proceeding below was commenced by the filing of the owner's
application on April 15, 1986. A hearing therein was conducted on
July 2, 1986. The Administrative Law Judge (ALJ) issued his
Adm. Rev. Docket No.: EB220232RO
findings (amongst which, that the owner was proceeding in good
faith) subject to the owner's submitting approved plans filed with
the New York City Department of Buildings for the changes required
to convert the subject building to the postulated business use and
subject to the owner's submitting proof of compliance with the
relocation requirements of 9NYCRR2204.4. On September 22, 1988 and
November 16, 1989, the Administrator sent the owner written notices
to submit a copy of the approved building alteration plans and a
statement of compliance with the relocation requirements under
9NYCRR2204.4. Having received neither of the documents sought, on
January 19, 1990, the Administrator issued an order terminating the
proceeding based on the owner's failure to submit said documents.
In the PAR, the owner argues, in substance, that the appealed order
should be revoked because the owner had responded to the notice of
September 22, 1988 and the owner's counsel had responded to the
notice of November 16, 1989.
In their answer opposing the PAR, the tenants argue, in substance,
that actions taken by the owner after the issuance of the appealed
order negate any inference that the owner is proceeding in good
faith and that, for that reason, among others, the PAR should be
denied.
The Commissioner is of the opinion that the PAR should be denied.
The Commissioner notes that the submission of building alteration
plans approved by the Department of Buildings of the City of New
York is a key piece of evidence on the question of an owner's good
faith in a proceeding like this. The substance of the owner's
October 10, 1988 response to the September 22, 1988 notice was that
the alteration plans had been submitted to the Department of
Buildings and should be approved in about a month; and that the
owner needed clarification of the relocation provisions of the Rent
and Eviction Regulations.
The Commissioner further notes that by a letter dated November 14,
1989 the owner's attorneys inquired into the status of the owner's
application. The Commissioner further notes that said letter makes
no reference to the owner's failure to submit approved building
alteration plans or a statement of compliance with the relocation
requirements under 9NYCRR2204.4. Yet said letter asks if further
documentation is required. Something counsel might have readily
ascertained from an interview with the owner and/or a review of the
owner's records. On November 16, 1989, the Administrator sent the
owner a second notice, again asking for a copy of the approved
alteration plans and a statement of compliance with the relocation
provisions of the Rent and Eviction Regulations. With said notice,
Adm. Rev. Docket No.: EB220232RO
the Administrator sent the owner a copy of the applicable sections
of said Regulations. A copy of said notice was sent to the owner's
attorneys. The Commissioner notes that neither the owner nor his
attorneys responded to the November 16th notice until said
attorneys' letter of December 18, 1989, wherein an extension of
time until January 14, 1990 was requested for the submission of the
documents requested.
The record indicates that the Administrator heard nothing further
from the owner or his attorneys until after the appealed order was
issued, on January 19, 1990. On January 22, 1990, the Administrator
received a letter dated January 19, 1990 wherein the owner's
attorneys asked for a further extension of time to submit the
requested proofs.
The Commissioner notes that with the owner's June 18, 1990 reply,
to the tenants' answer to the PAR, the owner submits what he claims
are a copy of the approved building alteration plans . The
Commissioner also notes that the accompanying copy of the
application for approval of those plans, addressed to the
Department of Buildings, is dated February 20, 1989 (more than four
months after the owner's letter of October 10, 1988, wherein the
owner stated that the plans had already been submitted) and that
the plans appear to have been stamped "Approved" on March 15, 1989.
The Commissioner further notes that there is nothing in the record
below, or on appeal, to explain the owner's failure to submit the
approved plans to the Administrator within a reasonable amount of
time after March 15, 1989; or why, instead of submitting said plans
with their letter of November 14, 1989, the owner's attorneys wrote
and asked if further documents were required. Likewise, the
Commissioner finds nothing in the record to explain why, after the
owner and his counsel were advised that such plans were required in
the November 16, 1989 notice, such plans were still, somehow,
unavailable for submission to the Administrator as of January 19,
1990, when the owner asked for a further extension of time.
The Commissioner finds no error in the Administrator's termination
of the proceeding hereinbelow, more than three and a half years
after it had been commenced, when the owner inexplicably failed to
go forward with the submission of essential proofs.
The Commissioner notes that this Order and Opinion is issued
without prejudice to the owner's filing an application for a
certificate of eviction on the same grounds as the previous
application if the facts and circumstances so warrant and the owner
Adm. Rev. Docket No.: EB220232RO
so chooses.
THEREFORE, in accordance with the provisions of all of the
applicable laws and regulations, it is
ORDERED, that this Petition be, and the same hereby is denied; and
that the appealed order be, and the same hereby is affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
1A2D3D4EB220232.RO
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