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




          ------------------------------------X                  
          IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO.: EB220232RO  
                                              :  
              JACK MONTAG,                       DRO DOCKET NOS:     
                                                             AD220017OE
                                PETITIONER    :                             
          ------------------------------------X                              
                                                 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

















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