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.
          SJR 5738










          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 
          SJR 5738



          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 
          SJR 5738



          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               






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