HF410032RO

                                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 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         
                  
                            PETITIONER    : 
      ------------------------------------X                             

           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 
      lease.

      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 







          HF410032RO

      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 


          HF410032RO

      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 







          HF410032RO

      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 
      Stabilization Code.

      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.


      ISSUED:



                                                                    
                                      JOSEPH A. D'AGOSTA
                                      Deputy Commissioner
    

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