SJR7480, FD110341RO

                                  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  S.J.R. NO. 7480
          IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
          APPEAL OF                              DOCKET NO. FD110341RO
                                              :  DRO DOCKET NO. ZEA110074RV
               TEDDY GIATIS                      TENANT: CAROL CERLENKO

                                PETITIONER    : 
          ------------------------------------X                             
             ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW


               On April 26, 1991, the above-named petitioner-owner filed a 
          Petition for Administrative Review against an order issued on March 
          22, 1991, by the Rent Administrator, 92-31 Union Hall Street, 
          Jamaica, New York, concerning the housing accommodations known as 
          40-15 193rd Street, Queens, New York, Apartment No. 1, wherein the 
          Rent Administrator directed the owner to offer a renewal lease to 
          the tenant.

               Subsequent thereto, the petitioner-owner 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's 
          administrative appeal be annulled.  This proceeding was then 
          remitted to the DHCR for a determination of the appeal.
            
               The Administrative Appeal is being determined pursuant to the 
          provisions of Sections 2524.2 and 2524.4 of the Rent Stabilization 
          Code.

               The issue herein is whether the Rent Administrator's order 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 January 1990 by the tenant's 
          filing of a complaint of the owner's failure to offer a renewal 
          lease.  In such complaint, the tenant stated that the owner claimed 
          he wants the tenant's apartment for his own personal use, but that 
          he already has the use of another apartment in the subject premises.  
          Further the tenant stated that she has resided in the subject 
          apartment for more than twenty years.

               In a response to the tenant's complaint dated February 12, 
          1990, the owner stated in substance that he sent a non renewal of 
          lease and termination of tenancy notice pursuant to Section 
          2524.4(a)(1) of the Rent Stabilization Code based on the fact that 
          the owners sought to recover the subject apartment for their own use 
          and occupancy as their primary residence.  The owner further stated 









          SJR7480, FD110341RO




          that the fact that the tenant had resided in the subject apartment 
          for more than twenty years did not preclude such non renewal notice 
          since the tenant was rent stabilized and not rent controlled.

               In a response dated July 10, 1990, the tenant stated in 
          substance that she lives in a garden apartment so that a certificate 
          of eviction for owner occupancy can only be granted under very 
          limited circumstances - accord: CI110039RT.  On January 19, 1991, 
          the tenant submitted a further response in which she indicated that 
          another tenant of the subject premises - Rose Stiga - of apartment 
          4 had also been sent a notice of non renewal of lease based on owner 
          occupancy in 1988 and that Ms. Stiga had then vacated and the owners 
          now occupied apartment 4.  In addition the tenant stated that 
          apartment 3 in the subject premises was also vacant.

               The owner was sent a copy of the tenant's response and afforded 
          an opportunity to answer.  The owner was given an extension of time 
          until 20 days after March 7, 1987 to answer.  On March 27, 1991, the 
          owner filed his answer stating in substance that the owner herein 
          Teddy Giatis owns the subject premises along with his wife Elena 
          Giatis and Teddy's parents Vasilios and Dina Giatis as co-owners.  
          A copy of the closing statement was submitted in support of this 
          contention showing that ownership was acquired on May 15, 1987.  The 
          owner also acknowledged that in April, 1988, he initiated an 
          owner/occupancy holdover suit against the tenant in apartment 4 on 
          the basis that his parents had an immediate and compelling necessity 
          to occupy apartment 4 and that his parents are indeed now in 
          occupancy of apartment 4.  The owner further stated that he is now 
          seeking occupancy of the subject apartment for himself and that an 
          owner can recover one apartment for himself, but as many other 
          apartments as he wants for members of his immediate family.  
          Finally, the owner urges that the fact that his parents are co- 
          owners of the subject premises should not bar him from seeking the 
          subject apartment for his own use and occupancy since there would 
          clearly be no bar if the parents were not co-owners.

               Prior to the owner's submission on March 27, 1991, the Rent 
          Administrator issued the order hereunder appeal directing the owner 
          to offer the tenant a lease renewal on the basis that the owner 
          could not seek to evict a tenant who has lived in a rent regulated 
          apartment for more than twenty years due to the fact that the owner 
          wants to occupy such apartment.

               In this petition, the owner alleges in substance that the Rent 
          Administrator's order must be reversed because it was rendered 
          before the owner's time to answer had expired; that the owner's 
          notice of non-renewal satisfied all requirements pursuant to Section 
          2524.4(a)(1) of the Rent Stabilization Code and that the Rent 
          Administrator erred in finding that the tenant's residence in the 
          subject apartment for more than twenty years precluded a holdover 
          proceeding based on owner occupancy.






          SJR7480, FD110341RO

               The Commissioner is of the opinion that this petition should be 
          denied and the Rent Administrator's order should be modified.

               At the outset, the owner is correct in his contention that the 
          Rent Administrator's order should not have been issued before the 
          owner's time to file an answer had expired.  Accordingly, the 
          owner's answer filed on March 27, 1991, has been fully considered in 
          the determination of this petition thus satisfying due process 
          requirements.

               Turning to the merits, Section 2524.4 of the Rent Stabilization 
          Code provides in pertinent part that grounds for refusal to renew a 
          lease include occupancy by an owner or member of the owner's 
          immediate family as a primary residence provided that this provision 
          shall not apply where a tenant or spouse of a tenant lawfully 
          occupying the housing accommodation is a Senior Citizen or Disabled 
          Person unless the owner offers to provide and, if requested, 
          provides an equivalent or superior housing accommodation at the same 
          or lower regulated rent in a closely proximate area.  Further these 
          provisions shall only permit one of the individual owners of any 
          building, whether such ownership is by joint tenancy, tenancy in 
          common or tenancy by the entirety to recover possession of one or 
          more dwelling units for personal use and occupancy.

               In the instant case, the owner is correct that the tenant's 
          occupancy in the subject apartment for more than twenty years is not 
          a bar to non lease renewal of a rent stabilized tenancy based on 
          owner occupancy.  However the record clearly shows that the owner 
          already obtained an apartment in the subject premises for his co- 
          owner parents based on the occupancy of the parents and therefore is 
          precluded from seeking to recover a second apartment for owner 
          occupancy.  This is so even though the co-owner parents are members 
          of the immediate family of the owner herein.  The Rent 
          Administrator's order is hereby modified to show that the reason for 
          directing the lease renewal is the fact that the owner already 
          obtained one apartment due to owner occupancy rather than the fact 
          that the tenant was in occupancy of the subject apartment for more 
          than twenty years.  In all other respects, the Rent Administrator's 
          order is affirmed.

               THEREFORE, in accordance with the provisions of the Rent 
          Stabilization Law and Code, 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 as modified.

          ISSUED

                                                                        
                                          JOSEPH A. D'AGOSTA
                                          Deputy Commissioner



                     









          SJR7480, FD110341RO






























    

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