STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.GE110035RO
: DRO DOCKET NO.
Daleglen Manor Co. FK110033RV
TENANT: Anthony & Isabel
PETITIONER : Ciotha
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On May 5, 1992, the above-named petitioner-owner filed a Petition
for Administrative Review (PAR) against an order issued on April
10, 1992 by the Rent Administrator, 92-31 Union Hall Street Jamaica
New York concerning the housing accommodation known as 79-11 146th
Street, Flushing, New York, Basement apartment wherein the
Administrator directed the owner to offer the tenant a lease.
Subsequent thereto, the owner filed a petition pursuant to Article
78 of the Civil Practice Law and Rules in the Supreme Court, Queens
County where the court ordered that a determination of the owner's
PAR be expeditiously rendered.
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 in this appeal.
This proceeding was commenced on November 8, 1991 when the tenant
filed a complaint alleging that the owner refused to provide a
In answer to the complaint, the owner asserted that the
complainants were not tenants but had occupied the subject
apartment as the building superintendent. When terminated, they
had been granted the opportunity to remain in use and occupancy of
the apartment which had never been a rental unit.
In reply, the tenants asserted that the apartment had been rented
to them for $850.00 and that the owner had agreed to a two year
tenancy but refused to give them a lease. As proof of the rental
agreement, the tenants submitted two cancelled rent checks with
In the order here under review, the Administrator directed the
owner to provide the tenants with a lease.
In its appeal, the owner contends that the Administrator's order
should be reversed because the complainants are licensees, not
tenants and are not entitled to a lease. The owner further
contends that the order is in error in finding that the
complainants paid rent instead of use and occupancy; the apartment
at issue, having always been for the superintendent's use and not
a rental unit, was exempt; there was no intent, either oral or
written to establish a landlord-tenant relationship. The owner had
taken appropriate steps to evict the complainants, who had stopped
paying use and occupancy, before the issuance of the order.
Jurisdiction is with the court to determine whether the owner was
entitled to evict the complainants.
In answer to the appeal, the tenants contend that they had paid
rent pursuant to agreement with the owner but that the owner
refused payment and commenced a retaliatory holdover proceeding
after they requested a lease and initiated the instant proceeding.
During the processing of this appeal, a hearing pursuant to Section
2520.11 of the Rent Stabilization Code was held to determine
whether the complainants' occupancy of the subject apartment is
protected by the Rent Stabilization Law and Code.
Based upon the evidence adduced during the course of the hearing
held on five dates between January 26, 1993 and April 19, 1993, it
was determined by the Administrative Law Judge who presided at the
hearing that the owner had no intention of creating a tenancy but
had permitted the complainants to remain in the accommodation only
until they could relocate.
Accordingly, based on the entire evidence of record including the
hearing the Commissioner finds the DHCR does not have jurisdiction
over the unit which remains an exempt superintendent's apartment
and the complainant's application for a lease should be denied.
The Commissioner notes, parenthetically, that possession of the
subject premises was awarded to the owner upon the default of the
complainants in the proceeding in Housing Court.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted and
that the Rent Administrator's order be, and the same hereby is,
JOSEPH A. D'AGOSTA