STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X SJR No. 7165
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. HF410032RO
: DRO DOCKET NO. HA410027RK
Andrew H. Popick, GD410001RV
TENANT: Robert Goldstone
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On June 3, 1993, the above-named petitioner-owner filed a Petition for
Administrative Review (PAR) against an order issued on May 21, 1993, by
the Rent Administrator, 92-31 Union Hall Street, Jamaica, New York,
concerning the housing accommodations known as 229 West 71st Street,
New York, New York, Apartment No. 2F, wherein the Administrator revoked
its prior order and directed the owner to offer the tenant a renewal
Subsequent thereto, the petitioner filed a petition in the Supreme Court
pursuant to Article 78 of the Civil Practice Law and Rules requesting
that the "deemed denial" of his administrative appeal be annulled.
The proceeding was then remitted to the Division for an expeditious
determination of the petitioner's administrative appeal.
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issue
raised by the administrative appeal.
This proceeding was commenced when the tenant filed a complaint of the
owner's failure to renew the lease.
In response, the owner asserted that it was not obliged to tender a
renewal lease because intending to occupy the subject apartment himself,
he had served a Notice of Intention of Non-Renewal of Lease pursuant to
Section 2524.4 of the Rent Stabilization Code. The owner submitted a
copy of said notice.
Subsequent thereto, the tenant submitted a copy of his last lease.
On August 19, 1992, the Administrator issued an order under Docket No.
GD410001RV in which the tenant's complaint was conditionally dismissed
on the basis of owner occupancy.
On September 24, 1992, the tenant filed a PAR and a request for
reconsideration of said order based upon an error in the order which
stated that the tenant was properly served with the Notice of the
owner's intention not to renew the lease expiring on May 31, 1992. The
tenant noted that the lease's actual expiration date was May 1, 1992.
On October 21, 1992, the tenant's PAR was dismissed as untimely.
Subsequently on January 4, 1993 the tenant submitted a copy of an order
issued in December 1992 by a Civil Court Judge in a holdover proceeding
regarding the subject apartment in which the judge found that since the
tenant has shown documentary proof that the lease expired on May 1 and
that the Notice of Intent not to renew was not served within the
required statutory period, the tenant's request for reconsideration of
the Rent Administrator's order was appropriate.
In an order issued on February 10, 1993, the Administrator, citing Code
Section 2527.8, reopened for reconsideration Order No. ZGD410001RV based
on the disparity of the expired lease date as stated in the tenant's
last lease and in the owner's termination notice.
In the order here under review, the Administrator revoked the order
issued on August 19, 1992 and determined upon reconsideration, that the
tenant's last lease expired on May 1, 1992 and not on May 31, 1992. The
Administrator further determined that the Notice of Intention, served by
the owner on January 23, 1992, less than 120 days prior to the
expiration of the lease term, was defective and that the owner was not
entitled to seek to obtain possession of the subject apartment but that
the tenant was entitled to a renewal lease.
In his appeal, the owner contends in substance that Order No. HA410027RK
be revoked and that Order No. ZGD410001RV be reinstituted for the
following reasons: The Administrator's decision to reopen the proceeding
and subsequently to revoke the order was incorrect and without
foundation in law or DHCR policy; Policy Statement 91-5 provides that
issues not previously raised will not be entertained on reconsideration
except to the extent that the issue constitutes new evidence not
previously available. Yet, neither the tenant's request for
reconsideration nor the order reveal any new evidence not previously
available to justify raising the issue of the lease expiration date for
the first time in the request for reconsideration; moreover, the owner
argues, relevant case law indicates that the Rent Administrator's
mistake does not constitute an irregularity in a vital matter. In
Douglas W. Barnert v. 41 First Avenue Associates, NYLJ 2/8/90, p.21,
col.1, App. Div. First Dept., the court found the DHCR without authority
to modify a prior determination on the basis of an ex parte application
after the appeal period had expired. The tenant's failure to raise the
issue of service of notice during the proceeding before the Rent
Administrator or to timely appeal precludes the DHCR from reconsidering
its order on that issue.
The tenant contends that the owner's PAR should be denied because the
owner has failed to demonstrate a basis for vacatur of the order. The
DHCR has the inherent power to correct an obvious inadvertent error.
The purpose for a request for reconsideration is to provide either party
with an opportunity to apprise the DHCR of any error and to enable the
DHCR to correct the error. An owner has no inherent right to profit from
errors inadvertently made by the DHCR.
After careful consideration, the Commissioner is of the opinion that
this petition should be denied.
The laws and regulations, specifically, Code Section 2527.8, permit the
DHCR to reconsider a case on application of either party to a
proceeding, or on its own initiative and upon notice to all affected
parties where the DHCR finds that such order was the result of fraud,
illegality or irregularity in a vital matter. However, issues not
previously raised in the proceeding will not be a basis for
reconsideration except to the extent that the issue constitutes new
evidence not previously available.
Although the tenant's PAR, filed on the 36th day following issuance of
the order, was correctly dismissed as untimely, requests for
reconsideration do not have such a time limit. Since the Code does not
require a party to file an appeal in order to request reconsideration,
the DHCR was not precluded from reconsidering the order by the tenant's
failure to timely file the appeal.
Code Section 2524.4 provides in pertinent part that an owner may
commence an action or proceeding, on the grounds of occupancy by the
owner or a member of the owner's immediate family, in a court of
competent jurisdiction after serving the tenant with a notice as
required pursuant to Code section 2524.2(c)(3) which provides that such
notice must be served at least 120 days and not more than 150 days prior
to the expiration of the lease term.
As provided by the Code, the owner's ability to recover possession for
its own occupancy is predicated on the timely service of the requisite
Notice of Intent not to renew the lease. It is axiomatic that failure
to serve the Notice between 120 and 150 days before the expiration date
of the lease will bar an owner from the relief it seeks.
Since the tenant's last lease, which contained a clear statement of its
expiration date, May 1, 1992, was in evidence, the Administrator was
mandated to examine the primary source, the lease, to determine whether
the tenant had been timely served with the Notice. The Administrator's
failure to do so and/or its reliance on the expiration date provided by
the owner in the notice, without investigating the difference between
the two, constitutes an irregularity in a vital matter which was
correctly remedied by granting the tenant's request for reconsideration.
Further, it is noted that the Judge in the Civil Court holdover
proceeding also stated that reconsideration was appropriate.
Pursuant to Sections 2524.2 and 2524.4, the primary interrogatory - the
threshold issue - is proper service of the notice of intention not to
renew. From the time the tenant filed his complaint and submitted his
last lease, the issue and the evidence were before the Administrator.
Accordingly, nothing in Policy Statement 91-5 precluded the DHCR from
reconsidering the matter.
Douglas W. Barnert v. 41 Fifth Avenue Associates, op. at, the case
relied on by the owner, is inapposite to the instant proceeding. In the
cited proceeding, an ex parte request, reducing the amount of an
overcharge award, was granted after the entry of judgment. That court
found that a mere change of mind is insufficient to warrant revoking a
determination or reviewing orders properly and finally made, even if an
injustice is the result. In the instant case, there was full compliance
with due process requirements. The owner was given a chance to
participate in the original proceeding before the Rent Administrator.
Further the owner was notified and given the opportunity to respond to
the tenant's request for reconsideration. The owner did respond but at
no time did the owner allege that timely service of the Notice of
Intention had been effectuated, nor did the owner dispute the expiration
date of the lease term. The revoked determination was not the result of
a change of mind but was the result of an irregularity in a vital
matter, in this case such irregularity was an improper action by the
Administrator in failing to find that the owner had not complied with
the notice requirement of Sections 2524.2 and 2524.4 of the Rent
Accordingly, the Commissioner finds that the Administrator, upon
reconsideration, did not err in revoking the order issued under Docket
No. GD410001RV and in determining that the Notice of Intention of non-
renewal of lease, having been served less than 120 days prior to the
expiration of the lease term, was defective.
The Commissioner further finds that the Administrator correctly directed
the owner to offer the tenant a renewal lease.
THEREFORE, in accordance with the provisions of the Rent Stabilization
Law and Code, 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.
JOSEPH A. D'AGOSTA