Adm. Rev. Docket No.: GJ910170RO
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 SJR 6849
DOCKET NOS.: GJ910170RO
DRO DOCKET NO.: GG910011RK
PETITIONER TENANT: GEORGE F. DUFF
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
AND MODIFYING ADMINISTRATOR'S ORDER
The above-named petitioner-landlord timely filed a Petition for
Administrative Review (PAR) against an order issued on September
11, 1992, by the Rent Administrator at 55 Church Street, White
Plains, New York concerning housing accommodations known as
Apartment A-3B at 600-A Pelham Road, New Rochelle, New York,
wherein the Administrator affirmed his previous order of June 10,
1992 wherein he had terminated the proceeding brought on by the
tenant's complaint as to an attempt by the petitioner-landlord to
unlawfully evict the tenant.
Subsequently, the landlord filed a Petition in the Supreme Court,
Westchester County, under Article 78 of the New York Civil Practice
Law and Rules, in the nature of an application seeking judicial
review of the deemed denial of the landlord's PAR. Thereafter,
pursuant to a Stipulation entered into between the Division and the
landlord, the matter was remitted to the Commissioner.
The Commissioner notes that upon the filing of this one PAR,
inadvertently, two Dockets were opened: GJ910170RO and GJ920232RT.
The Commissioner further notes that this clerical error was further
compounded by the erroneous voiding of Docket Number GJ910170RO
(which is the correct Docket Number for a PAR filed by an owner, or
landlord) instead of GJ920232RT. Lastly, the Commissioner advises
all interested parties that these clerical errors were rectified
prior to the issuance of this order and opinion by the closing of
Docket Number GJ920232RT and the reopening of GJ910170RO.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the evidence relevant to
Adm. Rev. Docket No.: GJ910170RO
the issues raised in the administrative appeal.
The issue in this proceeding is whether the landlord must follow
the established procedures of the DHCR in order to obtain the
relief he seeks.
The proceeding below was commenced by the tenant's complaint.
The tenant claimed, in substance, that the landlord was attempting
to evict the tenant contrary to applicable law.
The landlord responded, in substance, that this is a cooperatively
owned building, that he owns the shares of stock allocated to this
apartment, that the tenant is a nonpurchasing tenant, that the plan
under which the subject building had been converted to cooperative
ownership was an eviction plan and that all of the prerequisites
provided for in the ETPA, the TPR and the General Business Law to
entitle him to obtain possession of the apartment for the use of
his son have been met.
On June 10, 1992, the Administrator issued an order wherein, in
substance, he noted that the landlord had not filed an Application
For Order Granting Approval To Refuse Renewal of Lease and To
Proceed For Eviction (Form RA-54); advised the landlord that no
eviction may proceed in court unless and until the DHCR has issued
an order permitting such action; noted that the tenant's present
status is what was relevant to a proceeding brought to obtain
possession under Section 54, advised the tenant that he need not
vacate unless and until required to do so by a court order and
terminated the proceeding below.
Thereafter, the landlord requested the Administrator to reconsider
the June 10, 1992 order. That request was granted and on June 19,
1992 a Notice of Commencement of Proceeding to Modify or Revoke
Order was issued re-opening the proceeding below.
Subsequently, the appealed order was issued. It affirmed the
original, June 10, 1992, order.
In his appeal, the landlord argues, in substance, that the law does
not require him to do anything further to obtain possession of the
subject apartment. The landlord also argues, among other points,
that the tenant's status as a senior citizen and/or a disabled
person must be deemed fixed in accordance solely with Section
352eee of the General Business Law and with reference to the time
the cooperative plan became effective; that the fact that the
tenant may be a senior citizen or disabled person now, under the
TPR, is irrelevant.
The tenant opposes the PAR on various grounds.
The Commissioner finds that this PAR may be determined solely on
procedural grounds. The only matter before the Administrator was
Adm. Rev. Docket No.: GJ910170RO
the tenant's complaint. That matter was disposed of in an order
which did very little more than advise the parties that there has
been no determination of the landlord's claim to possession because
the landlord had not commenced a proceeding seeking a determination
as to that claim. The rest of the appealed order, with one
exception, merely advised the parties that absent such a
determination, the status quo would obtain. That exception is the
portion of the Administrator's order which reads as follows: "The
owner is further advised that it is the tenant's status now which
is relevant to any proceeding under Section 54 of the Regulations."
The Commissioner finds that the insertion of that last quoted
sentence in the June 10, 1992 order was an error because it
addressed an issue which was not then before the Administrator.
Therefore, the Commissioner finds that the appealed order, which
affirmed the June 10, 1992 order, should be modified by the
deletion of the above quoted sentence from the affirmed June 10,
At the risk of being redundant and to insure clarity, the
Commissioner points out that this order and opinion is issued
without prejudice to the landlord's right to commence a proceeding
(following the established DHCR procedures and utilizing the
prescribed DHCR forms) to determine his claim of right to
possession; and that nothing in this order and opinion or in the
appealed order (as modified herein) should be construed as
containing any determination as to the merits of such a proceeding,
should the landlord commence one.
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 modified
as indicated hereinabove; and it is further
ORDERED, that in all other respects, the Administrator's order be
and the same hereby is affirmed.
JOSEPH A. D'AGOSTA