Adm. Rev. Docket Number FJ 220121 RO
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 6294
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FJ 220121 RO
CATALINA LOPEZ
DRO DOCKET NO.:
DJ 220009 OE
PETITIONER TENANT: JAMES MAGLIOZZO
----------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioner-owner timely filed a Petition for
Administrative Review against an order issued on October 17, 1991,
by the Rent Administrator at Gertz Plaza, Jamaica, New York,
concerning housing accommodations known as the top floor apartment
at 1644 65 Street, Brooklyn, New York, wherein the Administrator
dismissed the owner's application for a Certificate of Eviction
under section 2204.9(a)(4) of the Rent and Eviction Regulations.
Subsequently, the Petitioner filed a petition in Supreme Court,
Kings County (Index Number 6580/92 was assigned to that
proceeding), under Article 78 of the New York Civil Practice Law
and Rules, requesting that the "deemed denial" of the Petitioner's
Petition for Administrative Review be annulled.
Thereafter, pursuant to the order of the Hon. Gerald S. Held,
Justice of the Supreme Court, dated June 4, 1992, the matter was
remanded to the Division for further processing upon the condition
that if the Division did not make a decision on the Petitioner's
administrative appeal on or before August 14, 1992, the Petition
for Administrative Review would be deemed granted and the Division
would be deemed directed to issue a Certificate of Eviction.
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the evidence relevant
to the issues raised in the administrative appeal.
The issue in this appeal is whether the Administrator was correct
in denying the owner's application based on the Administrator's
finding that there is a reasonable possibility that the owner can
make a net return of 8 1/2% of the assessed valuation of the
subject property without recourse to the eviction sought.
This proceeding was originally commenced on October 11,1989, by
the owner's filing an application for a Certificate of Eviction
under Section 2204.9(a)(4) of the Rent and Eviction Regulations
(the Regulations), which are issued under the New York City Rent
(Control) Law (the Rent Law). In that application, the owner
Adm. Rev. Docket Number FJ 220121 RO
alleged that the tenant and his wife were approximately 67 years
of age, that they had resided in the subject apartment for
approximately 39 years and that they paid $45.00 a month in rent.
The owner further alleged that the subject building is a one
family house, that she resides therein with her disabled son in
cramped circumstances and that an 8 1/2% return cannot be realized
from the rent paid by the subject rent controlled tenants. The
owner further alleged that she intends to permanently withdraw the
subject apartment from the rental market and to occupy the
subject apartment along with the portion of the subject building
she already, currently occupies.
In answer to the owner's application, the tenant alleged that he
has occupied the subject apartment since September of 1947; that
as soon as the owner purchased the building in 1982 she engaged
in a course of conduct that constituted harassment and which was
designed to wrongfully deprive him and his wife of their right to
occupy the subject apartment. A prior application for a
Certificate of Eviction had been filed by the owner and was
denied based on the grounds that the tenant was over 62 years of
age and he and his wife had resided in the apartment for more than
20 years. The tenant had asserted that said facts should have
provided a basis for denying the instant application below. The
tenant had further alleged that said application should be denied
in accordance with Section 2204.4(a) of the Regulations as likely
to result in the circumvention or evasion of the City Rent Law
and the Regulations. The tenant had further asserted that said
application should be denied on the grounds that the owner lacks a
good faith intention to withdraw the subject apartment from the
market; that there is a reasonable possibility the owner could
earn a return of 8 1/2% without resort to the eviction sought;
that economic relief is available to the owner under various
sections of the Rent Law and the Regulations; and the owner's
application should be denied on the grounds that the owner has
violated Section 2204.2(b) in harassing the tenant. The tenant
asked for a hearing in the event the Administrator was inclined to
grant the owner's application.
The owner responded to the tenant's answer by asserting, in
substance, that it should not have been considered as it was
untimely; that she had not harassed the tenants; that the tenants
had caused damage to the owner's building; and that the owner was
entitled to, and should be granted, the relief sought. The owner
also asserted that if the tenant's answer was to be considered,
the owner sought a hearing.
The Administrator denied the owner's application on the grounds
that the owner does not meet the prerequisites set forth in the
Sound Housing Law for the relief requested in that an audit
conducted by the Division indicated that there is a reasonable
possibility that the owner could realize a net return equal to
8 1/2 % of the assessed valuation of the subject building without
recourse to the subject eviction.
In the Petition, the owner, in substance, charges that the
Administrator's order represents a summary disposition of the
application which was issued in contravention of the applicable
law and the Regulations in a last minute effort to comply with
the April 25, 1991 order of the Hon. Barry Hurowitz, Justice of
Adm. Rev. Docket Number FJ 220121 RO
the Supreme Court, wherein the Administrator had been directed to
determine the owner's application within a certain period of time.
The owner reiterates the contention that a return of 8 1/2% cannot
be realized on the subject building with a rental income of $45.00
per month.
In the tenant's answer opposing the Petition, the tenant asserts,
in substance, that the Petition should be denied and the
Administrator's order should be affirmed.
The Commissioner is of the opinion that the Petition should be
denied.
The Commissioner notes that the proceeding hereinbelow was brought
under Subsection 2204.9(a)(4) of the Regulations; and that said
Subsection reads, in pertinent part, as follows:
(a) A certificate [of eviction] shall be issued where
the landlord establishes that he seeks in good faith
permanently to withdraw occupied housing accommodations
from both the housing and nonhousing markets, without
any intent to rent or sell all or any part of the land
or structure, and:
* * * * *
(4) that the continued operation of the housing
accommodation would impose ... undue hardship upon
the landlord.
The Commissioner further notes that Subsection 2204.4(g) of the
Regulations reads as follows:
(g)No application for a certificate of eviction shall
be granted under sections 2204.7, 2204.8 and
2204.9(a)(2) and (4) of this Part, unless the
administrator determines, after a hearing, that:
(1) there is no reasonable possibility that the
landlord can make a net annual return of 8 1/2 percent
of the assessed valuation of the subject property
without recourse to the eviction sought; and
(2) neither the landlord nor immediate predecessor in
interest has intentionally or willfully managed the
property to impair the landlord's ability to earn such
return.
The Commissioner finds that the Administrator's order was based
on an audit performed by the DHCR in accordance with the Sound
Housing Law and that the method employed in said audit for
determining whether there is any reasonable possibility that the
owner could realize a return of at least 8 1/2% on the subject
building without recourse to the subject eviction was reasonable
and in accordance with the applicable Law and Regulations.
Adm. Rev. Docket Number FJ 220121 RO
The Commissioner therefore finds that the Petition should be
denied.
THEREFORE, pursuant to all of the applicable statutes and
regulations, it is
ORDERED, that this Petition be, and the same hereby is denied and
that the Administrator's order be, and the same hereby is
affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
|
