Adm. Review Docket No: GL210174RO
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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: GL210174RO
NICHOLAS NICOLAIDES
DRO DOCKET NO.: FI210006OE
TENANT: JEAN SHERWOOD
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioner-owner timely filed a Petition for
Administrative Review (PAR) against an order issued on December 4,
1992, by the Rent Administrator at Gertz Plaza, Jamaica, New York,
concerning housing accommodations known as apartment number 2B at
434 61st Street, Brooklyn, New York, wherein the Administrator
denied the petitioner's application for authorization to commence an
action or proceeding to recover possession in a court of competent
jurisdiction after the expiration of the existing lease term on the
grounds that the petitioner intended to withdraw said housing
accommodation from the rental market and use it solely as the
residence of a resident superintendent for the subject building.
Subsequently, the owner filed an Article 78 Proceeding in Supreme
Court, New York County, in the nature of an application seeking
judicial review of the deemed denial of the instant PAR.
Thereafter, pursuant to a stipulation, the matter was remanded to
the Division for further processing.
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 petitioner had complied with
the procedural pre-requisites for the maintenance of a proceeding of
this nature (9NYCRR2524.5 and 9NYCRR2524.2). The Commissioner finds
that the petitioner did not meet said pre-requisites.
The proceeding hereinbelow was commenced in September of 1991 by the
filing of the owner's application.
Adm. Review Docket No: GL210174RO
After issue had been joined a hearing was held before an
Administrative Law Judge (ALJ). Thereafter, the ALJ issued her
findings and conclusions. Based thereon, the Administrator issued
the appealed order.
In substance, the ALJ found that the tenant's last lease expired on
March 31, 1991; that the owner had served a notice of non-renewal of
lease by letter dated November 9, 1990 and then filed a holdover
proceeding in Civil Court on April 9, 1991. The ALJ further found
that the holdover proceeding had been dismissed, on August 23, 1991,
on tenant's motion and on the ground that under the Rent
Stabilization Code authorization for leave to recover possession in
a case like this had to come from DHCR. The ALJ further found
(citing Cacaj v. Levine, N.Y.L.J. July 3, 1991, p. 25, cols. 4 & 5
[Civil Court of the City of New York, New York County]) that the
owner herein could not properly file his application with the DHCR,
after the Court had dismissed his holdover proceeding, without first
serving a new termination Notice on the tenant in accordance with
9NYCRR2524.2 and that since the lease had already expired when the
holdover proceeding had been dismissed, a second termination Notice
could not have been timely served before the DHCR proceeding was
commenced. Based thereon, the ALJ recommended that the application
be denied and the owner be directed to offer the tenant an
appropriate renewal lease.
In the appealed order, the Administrator denied the owner's
application and terminated the proceeding below based on the owner's
failure to serve a second Notice of Non-Renewal of Lease; noting
that [as the lease had expired when the Court dismissed the holdover
proceeding] the owner could no longer serve such a notice timely as
such notice would have to have been filed not more than 150 days nor
less than 120 days before the expiration of the current lease.
In the PAR, the owner argues, in substance, that the dismissal of
the holdover proceeding by the Civil Court was , by its nature,
without prejudice; the prior notice to the tenant was effective to
meet the pre-requisite notice requirements for the DHCR proceeding;
and, therefore, the Administrator erred in requiring a second
notice.
In the tenant's answer to the PAR, the tenant argues, in substance,
that the order below should be affirmed and cites the additional
ground based on the tenant's allegation that other suitable
apartments have become available for the superintendent's use after
the issuance of the Administrator's order.
The Commissioner is of the opinion that this PAR should be denied.
The Commissioner finds that the overwhelming weight of judicial
authority indicates that where the giving of a notice prior to the
commencement of an action or proceeding to recover possession of a
residential housing accommodation is required, if the first such
action or proceeding is terminated without prejudice to the
commencement of a subsequent one, before the second action or
proceeding may be brought, a second prior notice must be given to
the tenant. The Commissioner sees no distinction in this regard
between a proceeding brought in Court under 9NYCRR2524.4 (Cacaj v.
Levine, supra); under 9NYCRR2204.3 (Kaycee West 113th Street Corp.
Adm. Review Docket No: GL210174RO
v. Diakoff, 160 AD2d 573, 554 N.Y.S.2d 216 [1st Dept. 1990],
Weinberger v. Driscoll, 89 Misc.2d 675, 392 N.Y.S.2d 236 [Civil
Court of the City of New York, New York County, 1977]; or under
Section 2232-a of the Real Property Law Haberman v. Wager 73 Misc.
2d 732, 342 N.Y.S.2d 405 [Civil Court of the City of New York, New
York County, 1973]); and a proceeding like the instant one, brought
under 9NYCRR2524.5, before the DHCR. Therefore, the Commissioner
finds that the Administrator properly denied the owner's
application.
Further, the Commissioner finds that there is an additional ground
upon which the Administrator might have denied the owner's
application. The original notice did not comply with 9NYCRR2524.5 or
9NYCRR2524.2 in that it did not set forth the facts upon which the
owner's application was based. At the hearing, the owner submitted
evidence to attempt to prove that he needed this specific apartment,
a second floor apartment, (as opposed to any other apartment in the
building: including any of the first floor apartments) because the
man whom he had chosen as the superintendent lives with his wife and
three grown sons and needs a separate bedroom for each son. The
letter of November 9, 1990, was, therefore, inadequate as it merely
stated the legal theory under which the landlord intended to proceed
and did not inform the tenant of any of the relevant facts the owner
intended to attempt to prove in order to support his claim of a
right to regain possession of this specific apartment. Kaycee West
113th Street Corp. v. Diakoff, supra.
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
Deputy Commissioner
1A2D3D2GL210174.RO
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