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




     ---------------------------------------X   
     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
     ---------------------------------------X     
                                               

            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.










          DOCKET NO.  HD910057RO

     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 



          DOCKET NO.  HD910057RO

     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 








          DOCKET NO.  HD910057RO

               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.



          DOCKET NO.  HD910057RO


     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





    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name