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 NO. 5738
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. FA 420252 RO
: FF 420145 RO
DOROTHY FRIEDMAN DRO DOCKET NO. ZEF-420007-OE
PETITIONER :
------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 24, 1991, the above-named petitioner-landlord filed
a Petition for Administrative Review against an order issued on
December 21, 1990, by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York, concerning the housing accommodations
known as 56 West 76th Street, New York, New York, Apartment No.BF,
wherein the Rent Administrator issued an order determining that
the issuance of a Certificate of Eviction for the subject
apartment pursuant to Section 2204.5 of the Rent and Eviction
Regulations for New York City was not warranted. On June 6, 1991,
the petition was rejected (docket FA 420252 RO) on the basis that
the petitioner filing the petition failed to sign and/or verify or
affirm the petition. The petition (docket FF 420145 RO) was then
refiled on June 10, 1991.
Subsequent thereto, the petitioner-landlord filed a petition
in the Supreme Court pursuant to Article 78 of the Civil Practice
Law and Rules requesting that the deemed denial of the petitioner-
landlord's administrative appeal be annulled. The proceeding was
then remitted, by stipulation to the DHCR for consideration of the
petitioner's administrative appeal.
The Administrative Appeal is being determined pursuant to the
provisions of Section 2204.5 of the Rent and Eviction Regulations
for New York City.
The issue herein is whether the issuance of a Certificate of
Eviction was warranted.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issue raised by the administrative appeal.
This proceeding was commenced in June 1990, by the landlord's
filing of an eviction application so that she and her six year old
grandson could occupy the one bedroom subject apartment in the
eight unit subject premises.
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During the course of this proceeding, it was established that
the landlord was sixty years of age and has had physical custody
of her six year old grandson (son of landlord's daughter) since
he was nine months old and is now his legal guardian; that the
landlord has owned the subject premises since November 1984, that
the landlord's son was murdered at his residence (on the same
block where the landlord currently lives) on March 7, 1987; and
that the tenant has resided in the subject apartment since
December, 1971. Both sides stipulated that the subject apartment
is rent controlled since it was vacant prior to June 30, 1971 and
remained vacant until it was rented to the tenant herein in
December, 1971.
On November 7, 1990, a hearing was held on this matter. At
such hearing,the landlord testified that she and her grandson are
currently residing in a one bedroom rented apartment where she has
lived for many years; that she and her grandson now require a
larger apartment; that she no longer is emotionally able to live
on the same block where her son was murdered; that she plans to
utilize the one bedroom duplex subject apartment (it consists of a
large studio room connected by a spiral staircase of about nine
steps to a finished basement room) in conjunction with apartment
BR currently occupied by a rent stabilized tenant whose lease will
expire in December 1990; that she intends to enlarge the basement
area by moving the boiler and by installing windows and a sliding
glass door on the rear wall; that she has discussed the
combination of the two apartments with an architect and is
financially able to proceed with the necessary construction; that
apartments 1R and 2R in the subject premises were combined to form
a single two level, two bedroom apartment connected by a spiral
staircase of approximately eighteen steps and rented for the first
time as a single unit in the latter half of 1987; that apartments
2F and 3F in the subject premises were also combined to form a
single two level, two bedroom apartment again connected by an
approximately eighteen step spiral staircase and also rented for
the first time as a single unit in the latter half of 1987; that
she did not seek to occupy either of these new units due to her
age because of the narrow numerous steps in the spiral staircase
and the fact that she would have to climb common area steps to
enter each unit; and that in 1987, her grandson was only four
years old and the stairs in each unit were "unsuitable" for him;
and that apartments 3R and 4R were remodeled in 1989 and became
available for rental in 1990 but were not suitable for her
occupancy because they are upper floor studio apartments.
The tenant testified that he is the sole rent controlled
tenant in the subject premises and that the landlord previously
offered him money to vacate the subject apartment.
The Administrative Law Judge who presided at the hearing
found that the landlord was not proceeding in good faith to
recover possession of the subject apartment because of an
immediate and compelling necessity for her own personal use and
occupancy; that the landlord's testimony that she must move due to
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the death of her son was unconvincing since the son had died over
three years prior to the commencement of the eviction proceeding;
that the landlord did not produce any evidence such as plans from
an architect, etc. to show that her construction plans are
feasible; and that the landlord has renovated and combined other
apartments within the subject premises enabling her to
significantly raise the overall amount of rent received.
On December 21, 1990, the Rent Administrator, based on the
findings and recommendations of the Administrative Law Judge,
issued the order appealed herein, denying the landlord's eviction
application.
In this petition, the landlord alleges in substance that she
is proceeding in good faith because of an immediate and compelling
necessity; that waiting about three years after the death of her
son to commence eviction proceedings was reasonable; that the
landlord is now in her mid-sixties and must move to a ground level
apartment; that the second and third floor units contain steep and
narrow staircases which the landlord cannot negotiate; that the
landlord's grandson is getting older and requires his own bedroom;
that the construction work contemplated is simple; that the Rent
Administrator never requested additional evidence to show the work
was feasible; that the landlord will be able to secure the rent
stabilized apartment BR when the lease expires as the only
requirement is that the landlord actually move into such apartment
and that there is no acrimony between the landlord and tenant.
The Commissioner is of the opinion that this petition should
be denied.
Section 2204.5 of the Rent and Eviction Regulations for New
York City provides in pertinent part that a Certificate of
Eviction shall be issued where the landlord seeks in good faith to
recover possession of a housing accommodation because of immediate
and compelling necessity for his own personal use and occupancy,
or for the use and occupancy of his immediate family.
In the instant case, the evidence of record including a
hearing discloses that the landlord is not proceeding in good
faith because of an immediate and compelling necessity. The
landlord and her six year old grandson have been residing since
the grandson was nine months old in the same one bedroom apartment
and have been living in said apartment for over three years after
the death of the landlord's son before the landlord filed her
eviction application. In addition vacancies suitable for
occupancy by the landlord and her grandson have occurred in the
subject premises subsequent to the unfortunate death of the
landlord's son. The Commissioner is not convinced that said
vacancies were not suitable because their interior staircases
contain approximately eighteen steps rather than the nine steps
found in the subject apartment. In this connection, it is noted
that the landlord has not submitted any medical evidence to show
that she would be unable to negotiate the additional steps. While
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the use of the subject apartment might be more convenient, mere
convenience does not amount to an immediate and compelling
necessity. Further, the landlord has not submitted evidence such
as architectural plans or a statement from her architect showing
the feasibility of the construction work proposed for the subject
premises. It is the landlord's responsibility to make such a
showing and the Rent Administrator was under no obligation to
direct the landlord to submit such additional evidence. Finally,
the Administrative Law Judge found portions of the landlord's
testimony to the effect that she wants to occupy the subject
apartment because of an immediate and compelling necessity not to
be credible. The Commissioner is of the opinion that the landlord
herein is motivated by a desire to decontrol the subject apartment
and obtain a higher rent rather than upon a need to occupy the
subject apartment with her grandson. Accordingly, the issuance of
a Certificate of Eviction was not warranted.
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations for New York City, it is
ORDERED, that this petition for administrative review be, and
the same hereby is, denied, and, that the order of the Rent
Administrator be, and the same hereby is, affirmed.
ISSUED
ELLIOT SANDER
Deputy Commissioner
ADMINISTRATIVE REVIEW BUREAU
COVERING MEMORANDUM
ARB Docket No.: SJR 5738, FA 420252 RO, FF 420145 RO
DRO Docket No/Order No.: ZEF-420007-OE
Tenant(s): Harold Stone
Owner: Dorothy Friedman
Code Section: 2204.5 of the Rent and Eviction Regulations
Premises: 56 West 76th Street, New York, New York, Apt. BF
Order and Opinion Denying Petition
Petition denied on basis evidence of record including a
hearing discloses that issuance of a Certificate of Eviction based
on owner occupancy was not warranted.
APPROVED:
Processing Attorney:
Supervising Attorney:
Deputy Counsel:
Deputy Commissioner:
Mailed copies of Order and Determination to:
Tenant(s)
Owner
Tenant's Atty
Owner's Atty
Date: : by
signature
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