GA 110335 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 6721
      IN THE MATTER OF THE ADMINISTRATIVE :  ADMINISTRATIVE REVIEW
      APPEAL OF                              DOCKET NO. GA 110335 RO

                                          :  DISTRICT RENT OFFICE
           Mohammad A. Malik,                DOCKET NO. CI 110223 RV
                                            
                                             TENANT: Roberto Montoya          
                
                            PETITIONER    : 
      ------------------------------------X                             

          ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW


      On February 5, 1992, the above-named owner timely refiled a Petition for 
      Administrative Review ("PAR") against an order issued on October 25, 
      1991, by a Rent Administrator concerning the housing accommodations 
      known as 84-11 Elmhurst Avenue, Elmhurst, New York, Apartment No. 6G, 
      wherein the Administrator had directed the owner to renew the tenant's 
      lease.

      After filing this PAR, the owner filed a petition with the Supreme Court 
      under Article 78 of the Civil Practice Law and Rules, requesting that 
      the "deemed denial" of his PAR be reversed.  Pursuant to the Article-78 
      petition, this matter has been remitted to the DHCR for expeditious 
      determination of the administrative appeal.

      This proceeding originated with the tenant's Complaint of Owner's 
      Failure to Renew Lease and/or Failure to Furnish a Copy of a Signed 
      Lease, filed on September 26, 1988.  That complaint stated that the 
      owner had refused to give the tenant a renewal lease, and also, that the 
      owner had failed to furnish the tenant with a signed copy of the 
      tenant's renewal lease.  The owner replied a month later, but that reply 
      pertained, apparently through inadvertence, to the tenant of an 
      apartment not involved in this proceeding.

      In December of 1990 the Administrator wrote to the tenant, asking if his 
      complaint had been resolved.  The letter requested the tenant to 
      "restrict your comments to the original complaint only."  The response, 
      to the effect that the matter was unresolved, was accompanied by copies 
      of two versions of a Notice of Non-Renewal of Lease and Termination of 
      Tenancy, dated December 26 and December 30, 1989, addressed by the owner 
      to the tenant.  The Administrator then requested inter alia a copy of 
      the tenant's "last, expired lease."  In response the tenant submitted, 
      in April, 1991, a copy of a renewal lease for the two years that had 
      commenced on May 1, 1988, and copies of rental checks covering inter 
      alia the 1990 portion of that term, stating that the issue of non- 
      renewal was unresolved.

      The ensuing order, here appealed, states in pertinent part: that on 
      September 26, 1988, the tenant complained "that the owner [had] failed 







          GA 110335 RO

      to furnish a signed copy of the renewal lease"; that due to the owner's 
      failure to interpose answers, the tenant's allegations will be deemed 
      admitted; that the period from May 1, 1986 through April 30, 1990, was 
      covered by two renewal leases between the parties; that "[s]ubsequently, 
      evidence indicates that the owner filed [sic] to offer tenant a renewal 
      lease and that the tenant [has] remained in occupancy . . . to present 
      . . . as a month-to-month tenant"; and that "[t]herefore" the owner is 
      directed to offer a renewal lease.

      In this petition the owner states in substance that the Rent 
      Administrator's order recites that the complaint was filed in September 
      1988, but also that there was a two-year lease that had commenced on May 
      1 of that year.  Therefore, the owner contends that when the complaint 
      was filed, "the parties were already four months into a new lease and . 
      . . well over a year from the time [the owner] would have been obligated 
      to offer a renewal lease.  Accordingly . . . the complaint should have 
      been dismissed."

      The record contains no response by the tenant to the petition.

      Having carefully considered the record, the Commissioner is of the 
      opinion that this petition should be granted, for the reason stated by 
      the owner.  It is clear from the record that when the tenant filed the 
      complaint herein, its material allegations were untrue.  (And the 
      tenant's later submissions should have pertained, as noted supra, only 
      to "the original complaint.")

      (If the complaint were to be viewed as one for failure to furnish a copy 
      of the lease, such a copy had obviously been furnished at some point 
      before the tenant submitted same, as mentioned above, in April of 1991.  
      Moreover, the Administrator granted no relief in this area and the 
      tenant has not appealed that determination.)

      This order is issued without prejudice to any complaint the tenant may 
      file concerning failure to renew leases after April 30, 1990, if the 
      owner does not pursue and/or prevail in its court action to recover 
      possession of the subject apartment for owner occupancy.

      THEREFORE, in accordance with the Rent Stabilization Law and Code, it is

      ORDERED, that this petition be, and the same hereby is, granted, and  
      that Rent Administrator's order be, and the same hereby is, revoked.


      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner
    

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