DOCKET NO. HD910057RO
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 : SJR NO. 7075
APPEAL OF ADMINISTRATIVE REVIEW
: DOCKET NO. HD910057RO
NEW PROPERTY ASSOCIATES, DRO DOCKET NO. GE910001OE
PETITIONER : Tenants: Roy and Ann West
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
This Order and Opinion is issued pursuant to a stipulation in the Supreme
Court, County of Westchester, Index Number 13377/93, dated September 28,
1993, under which the Division agreed to a remit of an Article 78 Proceeding
to reconsider its "deemed denial," upon which the court proceeding was based,
and to render a determination within 120 days of September 29, 1993.
On April 12, 1993, the above named petitioner-owner filed a Petition for
Administrative Review against an order issued on March 12, 1993 by the Rent
Administrator, 55 Church Street, White Plains, New York, concerning housing
accommodations known as Apartment B-J, 9 New Street, Eastchester, New York
wherein the Rent Administrator determined that the owner's application for
permission not to renew a lease and/or to proceed for eviction should be
denied.
The issue in this appeal is whether an owner with an alleged need for an
apartment for a resident superintendent must establish an immediate and
compelling necessity in order to evict the tenants-in-occupancy.
The applicable section of the Tenant Protection Regulations (TPR) is Section
2504.4(c).
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
by the administrative appeal.
In Order Number GE910001OE, the Rent Administrator determined, after a
hearing before an Administrative Law Judge (ALJ), that the above-cited
applicable section of the Regulations requires a showing not only of "good
faith but also the existence of an immediate and compelling need" for the
subject apartment. The Administrator found that the existence of two other
two bedroom apartments which were vacant indicated that there was no such
compelling need. The owner's argument that that a basement apartment such as
the subject apartment was required for the superintendents was found to be
unconvincing in view of the fact that some of the past superintendents had
lived in non-basement apartments and also became the superintendent in
question is only a part-time employee.
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The Administrator's order followed the findings and recommendation of the
ALJ.
In this petition, the owner contends that the Rent Administrator's Order is
incorrect and should be modified because TPR Section 2504.4(c) does not
require an owner to show an immediate and compelling need for an apartment in
order to use the apartment for a resident superintendent. In addition, the
owner argues that since the present superintendent is living in a one bedroom
apartment in the building, although he has a wife and two children, the
superintendent himself has "an immediate and compelling necessity" to obtain
an larger apartment, such as the subject apartment, which has two bedrooms.
More specifically, the owner argues that since another section, Section
2504.4(a), does require an immediate and compelling necessity for an owner to
recover an apartment for his or her own use, and since no such language
occurs in Section 2504.4(c), it is clear that the Legislature and DHCR
intended that no such requirement would exist under 2504.4(c).
The owner further argues that the Administrator was following precedent under
the "Rent Control Law which has a specific provision with respect to
immediate and compelling necessity [regarding an apartment for a superinten
dent] in the statute itself." Therefore, the Administrator erred by imposing
such a requirement under the TPR which has no such specific requirement.
Accordingly, the owner argues it only had to show a good faith need, which
the owner agrees the courts have found to be a requirement of the TPR even
though not stated in 2504.4(c). The owner quotes State Rent Administrator
Opinion No. 4 which states that the issue of good faith:
"may be resolved by inquiring into why the landlord seeks
to install a resident superintendent in those cases where
no violation has as yet been issued or where no resident
superintendent is required by law. The landlord complies
with the good faith requirement where he establishes his
honest intention and desire to gain possession of the
apartment for occupancy by a resident superintendent."
The owner acknowledges that Eastchester does not require a resident
superintendent, but argues for the first time on appeal that the existence of
a resident superintendent is a base date service for which the owner could
receive a rent reduction under ETPA if not provided.
Finally, the owner cites several court opinions for the proposition that an
owner's good faith is not disproved by the existence of vacant non-controlled
apartments which could be rented at a higher amount so that an owner would be
diminishing his income by using the non-controlled apartment for his own use.
Therefore, the owner argues, an owner's good faith is also not disproved if
he or she fails to utilize a vacant rent stabilized apartment with a higher
rent rather than an occupied stabilized apartment at a lower rent.
In answer to this petition, the tenants contend that the order should be
upheld because the very lack of case law under ETPA regarding eviction in
order to house a superintendent supports the Administrator's finding that an
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immediate and compelling need must be shown. In addition, the tenants argue
that since the superintendent in question does not maintain the boilers or
other equipment in the basement, the Administrator was correct in saying that
two other available apartments of comparable size were suitable. The tenants
also allege that the present superintendent holds a full-time job outside the
building and most of his duties have been assumed by his wife. In addition,
the tenants allege that there is now a vacant two bedroom apartment available
in the basement. The fact that the owner nevertheless is continuing to
pursue the present matter indicates both a lack of good faith and a lack of
a compelling and immediate need.
In a reply dated November 3, 1993, the owner argues that since immediate and
compelling need is not required by statute or regulations, it is need not be
shown. Indeed, the owner states:
"In all instances in the EHRCL and in the ETPA where
immediate and compelling need is required, it is specifi
cally st forth in the statute or in the regulations, such
as for owner occupancy certificates under the ETPA. Yet
neither the Legislature nor DHCR expressly required a
showing of immediate and compelling need for any other
certificate of eviction pursuant to the regulations.
Thus, in the absence of such requirement, the ALJ has no
authority to impose such requirement."
In the alternative, the owner argues that even if an immediate and compelling
need were required, because the building has had a part-time superintendent
even before it became subject to ETPA, the removal of such service would
subject the owner to a building-wide rent reduction. Furthermore, because
the present superintendent has a wife and two children, it is obvious that he
requires a two bedroom apartment. Accordingly, the owner argues, the
requirement for an immediate and compelling need has been met. The owner
reiterates that the cases cited in the owner's petition "clearly establish
that a landlord is not required to utilize a vacant apartment which has a
substantially higher rent" in order to satisfy the "good faith" requirement.
Finally, the owner alleges the newly vacant basement apartment is a one-
bedroom, not a two-bedroom apartment. The owner contends that this raises
questions as to the tenants' credibility. However, the owner does not
indicate any other factual allegation of the tenants that is in dispute. The
owner further alleges that since this issue was not before the ALJ or the
Administrator it is "completely irrelevant."
The Commissioner is of the opinion that this petition should be denied.
The owner's argument that the Administrator incorrectly required a showing of
immediate and compelling need is simply wrong.
Section 2504.4(c) of the TPR provides, in relevant part:
"Other grounds. The owner has established upon an
application on the prescribed form, after a hearing and
under such conditions and terms as the division may
determine to be warranted that the requested removal or
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eviction of the tenant is not inconsistent with the
purposes of the act or this Chapter and would not be
likely to result in the circumvention or evasion there
of."
This language closely parallels the corresponding language from the State
Rent Control Rent and Eviction Regulations, Section 2104.4(a):
"The Administrator may also issue orders granting
certificates in other cases if the requested removal or
eviction is not inconsistent with the purposes of the Act
or this Subchapter and would not be likely to result in
the circumvention or evasion thereof."
These are the Sections that an owner must rely on outside of New York City in
order to evict a tenant to use the apartment for a resident superintendent.
Contrary to the owner's allegations on appeal, neither the Rent Control Law
nor Regulations explicitly require a showing of immediate and compelling
necessity regarding resident superintendents. Furthermore, in both ETPA and
Rent Control that standard is stated explicitly for evictions for owner use
and occupancy (Section 2104.5(a)(1) [Rent Control Regulations], 2504.4(a)
[ETPA Regulations]). Thus, there is no relevant difference between the laws
and regulations of the two systems to support the making of a distinction on
the issue of whether an immediate and compelling need is necessary to evict
a tenant in order to have a resident superintendent.
Therefore, since it is undisputed that the courts have long upheld the
Division's requirement that an owner establish an immediate and compelling
necessity in order to evict a tenant from a rent-controlled apartment for the
purpose of housing a resident superintendent, the requirement is equally
valid under ETPA, one of whose stated purposes is "to prevent uncertainty,
hardship and dislocation," ETPA, Section 2 (Section 8622 in McKinney's
Unconsolidated Laws, Book 65).
The cases cited by the owner in its petition are distinguishable in that they
refer to comparable apartments which were not subject to rent control vis a
vis apartments which were rent controlled. That is, the apartments differed
in status, not just in rent levels. However, it is not necessary to discuss
whether this distinction is determinative. All those cases deal with the
requirement of "good faith" rather than with the requirement of an "immediate
and compelling need." In this context "good faith" simply means the honest
intention to gain possession of the apartment for occupancy by a resident
superintendent. Therefore, the cases cited by the owner are irrelevant to
the issue of immediate and compelling need, and therefore, they are
irrelevant to this proceeding.
Furthermore, the owner contends that Section 2504.4(c) is also relied on in
demolition cases and that "immediate and compelling necessity" is not
required in such cases. Therefore, the owner argues, it can not be required
in a superintendent case. This argument is without merit. The above-quoted
language for Section 2504.4(c) is clearly broad and general enough to both
cover all non-specified grounds for eviction and to allow the Division the
leeway to fashion appropriate standards for each ground.
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As to whether the owner had established an immediate and compelling necessity
before the Administrator, it is clear from the record that it did not. It is
undisputed that some prior superintendents occupied non-basement apartments;
that the present superintendent does not maintain the boilers or other
basement machinery; that vacant two bedroom apartments had been available for
use of the superintendent. Accordingly, the Commissioner finds that the
Administrator correctly denied the owner's application based on the owner's
failure to establish an immediate and compelling necessity for the eviction.
The owner's argument (made for the first time on appeal without good cause
being shown and therefore beyond the scope of review) that the possibility of
a building-wide rent reduction proves an immediate and compelling necessity,
would be without merit even if timely made. At all times relevant to this
proceeding the building has had a resident superintendent. Furthermore,
other two bedroom apartment could have been used for the employee.
THEREFORE, in accordance with the Emergency Tenant Protection Act and
Regulations, it is
ORDERED, that this petition be, and the same hereby is, denied and the Rent
Administrator's order be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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