DOCKET NO.: HG420006RT
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 : S.J.R. NO. 7200
APPEAL OF ADMINISTRATIVE REVIEW
: DOCKET NO. HG420006RT
BEN SCHAWINSKY, DISTRICT RENT ADMINISTRATOR'S
: DOCKET NO. EG420005OE
PETITIONER
:
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On July 2, 1993, the above-named tenant filed a petition for administrative
review of an order issued on June 4, 1993 by an Administrator concerning the
housing accommodation known as Apartment 4, 333 West 18th Street, New York,
New York.
Subsequently, the subject landlord filed a petition in the Supreme Court of
the State of New York, in the nature of an application for a writ of
mandamus, requesting that a determination of the petition for administrative
review be issued.
After considering the Article 78 petition, the Court issued an order
remitting the proceeding to the New York State Division of Housing and
Community Renewal (D.H.C.R.) for further consideration.
The Commissioner has reviewed all the evidence in the record and has
considered that portion of the record relevant to the issues raised by the
petition for administrative review.
On July 11, 1990, the subject landlord filed with the D.H.C.R. an
application for an order granting the landlord the right to proceed for an
eviction of the subject tenant. In her application, the subject landlord
asserted, among other things, that the subject apartment is required for her
son and her son's wife and child; that her son's family currently live in
the top floor apartment (Apartment 5) of the subject building, and that the
landlord intends to combine the top floor apartment and the subject
apartment into a duplex apartment for the use and occupancy of her son's
family.
On November 20, 1990, the subject tenant submitted a response which pointed
out that he lived in the subject apartment between 1952 and 1970 and between
1987 and the current date.
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The Administrator requested that the Hearing Bureau of the D.H.C.R. conduct
a hearing to determine the merits of the landlord's application.
Hearings were held on October 22, 1991, December 17, 1991, and February 20,
1992. The Administrative Law Judge made the following determinations:
1) That the subject landlord has alleged that Apartment 5
is too small for her family's living requirements;
2) That the subject landlord resides in Apartment 2; that
the subject tenant resides in Apartment 4, and that the
landlord's son, his wife and their son Frederick reside
in Apartment 5;
3) That Frederick was born on November 19, 1989;
4) That Apartment 5 contains a kitchen, bedroom, bathroom,
a "so-called sleeping-alcove," living room and a storage
room;
5) That Frederick sleeps in the sleeping alcove;
6) That Frederick's room is too small;
7) That Frederick's room is open to a hallway resulting in
a lack of privacy;
8) That "the spatial constraints foisted upon them by
Apartment 5 resulted in a less than ideal placement of
furniture throughout the unit which put Frederick at
some increase risk of injury";
9) That Dr. Damstra, M.D., testified at the hearing that
the current conditions of the apartment placed Frederick
"at risk" developmentally;
10) That, based upon the evidence submitted, the subject
landlord has proved that Frederick requires a relocation
of his sleeping quarters;
11) That Frederick's parents testified at the hearing that
converting their storage room into Frederick's bedroom
is not feasible as the storage room is too small; that
the door opens to the public hallway; that it is too far
from the master bedroom, and that it contained a
dangerous heat-riser;
12) That the small size of the storage room rules out using
the storage room as Frederick's bedroom;
13) That the subject landlord intends to combine Apartments
4 and 5 to create a duplex apartment for her family;
14) That the subject landlord "has established, by
substantial evidence, that she is proceeding in good
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faith to recover possession of Apartment 4, because of
an immediate and compelling necessity, for the use and
occupancy of her own immediate family";
15) That the subject tenant submitted his own alternative
plans which would alter Apartment 5, and would leave the
subject apartment intact;
16) That the subject tenant's plans do not "adequately
compensate for the overall smallness of Apartment 5"
relative to the daily living requirements of the
landlord's family;
17) That the subject landlord has established that
sufficient funding exists to finance the proposed work;
18) That the New York City Department of Buildings has not
approved the landlord's building plans;
19) That the issuance of the Certificate of Eviction should
be stayed until the landlord has submitted building
plans which have been approved by the Department of
Buildings, and
20) That " the twenty year rule contained in Rent and
Eviction Regulations Section 2204.5 is not presently
applicable to this case" as the subject tenant has not
occupied the subject apartment for twenty years.
In a letter submitted to the D.H.C.R., dated March 1, 1993, the subject
landlord alleged, among other things, that due to the proximity of the
parents' and Frederick's bedrooms, and the lack of doors, Frederick's mother
"has been compelled to change clothes in the bathroom, rather than the
bedroom like most people, to avoid being viewed naked by her son which, as
Dr Damstra testified, is an anxiety-producing experience"; that there is not
enough space in Apartment 5 for a dining table large enough to fit the
entire family; that the child "is still forced to eat in a high chair,
although, from a developmental standpoint, he outgrew one many months ago";
that the father often has to work at night; that when the father comes home
from work "he is forced to go through his son's doorless room and his own
bedroom in order to access the kitchen to partake of a meal," and that the
inadequate space in the apartment is causing emotional and physical stress
to the mother and her son, and is creating a "severe strain on the marriage
itself."
On April 1, 1993, the subject tenant submitted to the D.H.C.R. a response to
the landlord's above-mentioned letter. In his letter the tenant asserted
that the landlord "could have alleviated their immediate and compelling
necessity" by offering to rent the basement apartment to the subject tenant,
but the landlord rented the basement apartment to somebody else.
In her letter, dated April 12, 1993, the subject landlord asserted, among
other things, that the basement apartment is a small cellar apartment; that
the basement apartment would be inadequate for the subject tenant and his
roommate, and that "it is extremely doubtful" that the subject tenant "would
DOCKET NO.: HG420006RT
have accepted the offer even if the owner were inclined to make it despite
there being no legal obligation for her to have done so."
On April 14, 1993, the Administrator mailed a notice to the subject landlord
directing her to submit to the rent agency approved building plans with
permits from the Department of Buildings.
The subject landlord submitted to the D.H.C.R. her architect's affidavit
sworn to on May 4, 1993. In his affidavit the architect asserted, among
other things, that the building plans which were submitted to the Department
of Buildings for approval have been modified from the original plans
submitted at the hearing; that the new plans "increase the living space by
eliminating the need for connecting the two apartments by a staircase as
originally proposed at the hearing, and it "permits the areas that would
otherwise have been used to accommodate the stairs to function as living
and/or storage areas"; that the elimination of the need to construct stairs
between the two apartments reduce the construction costs considerably, and
that based upon the new building plans "the upper apartment will be used for
sleeping purposes and the lower apartment will be used for living, dining
and eating purposes."
On May 18, 1993, the subject landlord submitted to the D.H.C.R. a copy of
her building plans filed under alteration application number 100638197 which
were approved by the Department of Buildings, and a copy of the work permit
issued under Permit No. 100638197-01-EW.OT by the Department of Buildings.
On May 26, 1993, the subject tenant submitted a response to the D.H.C.R.
which stated, among other things, that "I have a copy of cut up plans for
the fourth and fifth floors"; and that the tenant asserted, among other
things, that the new plans substantiate the tenant's position taken at the
hearing because the new plans are inconsistent with the landlord's
objections to the plan proposed by the tenant.
In the order under review herein, the Administrator granted the landlord's
application, and issued a Certificate of Eviction for the purpose of
altering the subject apartment for the use and occupancy of the subject
landlord's immediate family, pursuant to Section 2204.5 of the City Rent and
Eviction Regulations.
In his petition the subject tenant asserts, among other things, that after
the hearings the building's basement became vacant; that the subject
landlord rented the basement apartment without offering to rent it to the
subject tenant; that by not offering the aforementioned vacant apartment to
the subject tenant negates the landlord's assertion that there exists an
immediate and compelling necessity to use the subject apartment; that the
landlord's failure to use a suitable vacant apartment are grounds for
denying the landlord's request for a Certificate of Eviction; that the
landlord's building plans that were submitted in the proceeding before the
Administrative Law Judge were different than the building plans which were
approved by the Department of Buildings; that the subject tenant did not
have an opportunity to review the approved building plans, and as such was
deprived of due process; that the approved plans violate the Housing
Maintenance Code; that the new plans will convert the fifth floor apartment
into an unlawful "rooming unit" as under the new plans the fifth floor
apartment will have its kitchen removed; that, the tenant states, "the
existing size of the fifth floor apartment is adequate by the standards
established by D.H.C.R., as affirmed by the court in the case of Buhagiar v.
DOCKET NO.: HG420006RT
D.H.C.R., 138 A.D.2d 226, 525 N.Y.S.2d 202 (1st Dept. 1988); that the rent
agency and the courts have determined that in finding that an immediate and
compelling necessity exists the landlord must demonstrate more than bare
inconvenience, and that, as the tenant asserts, the subject landlord has not
stated an immediate and compelling necessity for the use of the subject
apartment.
In her answer, dated July 29, 1993, the subject landlord asserts, among
other things, that the subject landlord had no legal obligation to offer the
basement apartment to the subject tenant; that the prior tenant of the
basement apartment and the landlord had agreed that the prior tenant "would
have the option to re-occupy the basement unit if he desired to return to
the City" within the next two years; that, the landlord states, "The unit
that became vacant has access to the owner's private garden and is a special
apartment that has been historically rented to family members or friends who
helped around the house"; that the basement apartment is a small "one-
bedroom unit" that would not have been suitable for the subject tenant and
his roommate; that the approved plans did not change the intended use of the
subject apartment; that the new plans did not negate the existence of an
immediate and compelling necessity for the landlord to use the subject
apartment; that the only difference between the original building plans and
the approved plans is that in the approved plans the two apartments will not
be connected by an interior staircase, and that the subject landlord has
substantiated her allegation that there is an immediate and compelling
necessity to use and occupy the subject apartment.
To her answer the subject landlord attaches, among other things, affidavits
sworn to by the current occupant of the basement apartment and the prior
occupant of the basement apartment.
In the affidavit submitted by the current occupant of the basement
apartment, he asserts that he commenced occupancy of the basement apartment
with the understanding that if the prior tenant "desired to come back within
the next two years, he could do so," and that he was expected, as occupant
of the basement apartment to perform certain minor repairs and chores in the
subject building.
In the affidavit submitted by the prior tenant of the basement apartment, he
asserts that as a condition of his occupancy he performed certain chores in
the subject building when the landlord or her son were unable to do so, and
that upon moving out of the basement apartment the landlord agreed to give
him the option to move back into the basement apartment within the next two
years.
On December 10, 1993, the rent agency mailed to the subject tenant a copy of
the approved building plans.
Subsequently, the subject tenant submitted several responses which, among
other things, reiterates the subject tenant's aforementioned objections to
the Administrator's order.
After careful consideration, the Commissioner finds that the subject
tenant's petition should be denied.
Pursuant to Section 2204.5 of the City Rent and Eviction Regulations, the
DOCKET NO.: HG420006RT
Commissioner finds that the D.H.C.R. will grant a Certificate of Eviction
when the landlord shows that she seeks in good faith to recover possession
of the apartment "because of immediate and compelling necessity" for her own
personal use and occupancy, or "for the use and occupancy" of her immediate
family.
Based upon the evidence in the record, the Commissioner finds that the
subject landlord has met the above-mentioned prerequisites, and that the
Commissioner further finds that the Administrator's order granting the
landlord's application in this proceeding was proper.
The Commissioner finds that the subject landlord not offering to rent the
basement apartment to the subject tenant does not warrant the revocation of
the Administrator's order.
The record reflects that the subject landlord filed her application in this
proceeding approximately three years prior to the vacancy in the basement
apartment. The record further reflects that when the subject landlord filed
her application for a Certificate of Eviction there were no vacant
apartments in the subject building. The Commissioner finds, based on the
record, that the landlord filed her application to evict the subject tenant
for the purpose of alleviating the overcrowding found in her son's
apartment.
Accordingly, the Commissioner finds that the subject landlord filed her
application to evict the subject tenant in good faith.
The Commissioner finds that the availability of the basement apartment
approximately three years after the filing of the landlord's application did
not change the fact that the landlord's family has an immediate and
compelling need to use and occupy the subject apartment to alleviate the
overcrowded conditions found in their apartment.
As the landlord points out, and the tenant does not dispute it, the
Commissioner finds that the basement apartment only contains one bedroom.
Accordingly, the Commissioner finds that the basement apartment is not
suitable for the landlord's family to occupy.
Pursuant to the applicable regulations, the Commissioner finds that the
subject landlord had no legal obligation to offer to rent the basement
apartment to the subject tenant.
DOCKET NO.: HG420006RT
As the subject landlord has agreed to give the prior tenant of the basement
apartment the option to return to the basement apartment within the next two
years; that the occupant of the basement apartment is required to perform
certain repairs and chores in the subject building; that the basement
apartment contains only one bedroom; that the subject landlord asserts,
which is not disputed by the tenant, that the subject tenant has a roommate,
and that the landlord was of the opinion that the basement apartment would
not have been suitable for the subject tenant and his roommate, the
Commissioner finds that the landlord has stated sufficient reasons for not
having offered to rent the basement apartment to the subject tenant.
The Commissioner notes that the subject tenant does not assert that he would
have rented the basement apartment had it been offered to him.
As to the tenant's assertion that the landlord's approved building plans
were different than the building plans the landlord submitted at the hearing
before the Administrative Law Judge, the Commissioner finds that that
assertion, which is correct, does not warrant the revocation of the
Administrator's order.
The Commissioner points out that in the Administrative Law Judge's findings
it was recommended that the granting of the Certificate of Eviction by the
Administrator be stayed until the subject landlord has submitted building
plans which have been approved by the Department of Buildings.
The Commissioner finds that in this proceeding the subject landlord was
required to submit to the Administrator the building plans which were
approved by the Department of Buildings for the sole purpose of establishing
that she was seeking possession of the subject apartment in good faith, and
not for the purpose of determining the validity of the building plans. The
Commissioner notes that it is not within the jurisdiction of the D.H.C.R to
approve proposed building plans.
The Commissioner is accordingly of the opinion that the subject landlord was
not required to submit to the Administrator the same building plans that
were submitted to the Administrative Law Judge, but that the subject
landlord was only required to submit to the Administrator in this proceeding
the building plans that were approved by the Department of Buildings.
The Commissioner notes that the subject landlord did submit to the
Administrator the building plans for the subject apartment and the top floor
apartment which were approved by the Department of Buildings.
As to the subject tenant's assertion that the approved building plans
violate the Housing Maintenance Code and that the approved building plans
would convert one of the apartments into an unlawful "rooming unit," the
Commissioner finds that those assertions are an impermissible collateral
attack on a determination by a separate governmental agency, i.e., the
Department of Buildings. The Commissioner further finds that the D.H.C.R.
does not have jurisdiction to review the decision of the Department of
Buildings in approving the landlord's building plans.
DOCKET NO.: HG420006RT
As to the tenant's assertion that he did not have an opportunity to review
the approved building plans, the Commissioner finds that that assertion is
belied by the fact that the tenant submitted a response to the Administrator
on May 26, 1993 in which the tenant stated that he has "a copy of cut up
plans for the fourth and fifth floors," and that in the above-mentioned
response the subject tenant did assert several objections to the approved
building plans.
The Commissioner notes that on December 10, 1993 the rent agency mailed a
copy of the approved building plans to the tenant, and a notice informing
the tenant of his opportunity to respond to the approved building plans.
The Commissioner further notes that the subject tenant did, in fact, submit
several responses to the D.H.C.R. pertaining to the approved building plans.
Accordingly, the Commissioner finds that the subject tenant was not denied
due process in this proceeding.
As to the tenant's assertion that based upon D.H.C.R. standards, as affirmed
by the court in the case of Buhagiar v. D.H.C.R., the current size of the
top floor apartment, by itself, is adequate for the needs of the landlord's
family, the Commissioner finds that that assertion is without merit.
In establishing whether the landlord seeks in good faith possession of the
tenant's apartment because of an immediate and compelling necessity, the
Commissioner finds that the D.H.C.R. does not base it findings on a
predetermined specific apartment size.
The Commissioner further finds that the findings of the D.H.C.R. or the
courts in a separate unrelated proceeding, e.g. Buhagiar v. D.H.C.R.,
pertaining to a landlord's application for a Certificate of Eviction do not
have evidentiary value in determining the merits of the subject landlord's
application in this proceeding. In determining whether a landlord has an
immediate and compelling necessity to possess a tenant's apartment, the
Commissioner finds that the rent agency bases its findings on the peculiar
facts presented in each individual proceeding.
The Commissioner further finds that the court's findings in the case of
Buhagiar v. D.H.C.R., 138 A.D.2d 226, 525 N.Y.S.2d 202, can be distinguished
from the findings in this proceeding. The Commissioner is of the opinion
that the court in Buhagiar determined that the landlord's primary purpose in
seeking to possess the tenant's apartment was for her business needs, and
not for her residential needs; while, the Administrator in this proceeding
determined that the subject landlord's primary purpose in seeking to possess
the subject tenant's apartment was to provide better living conditions for
her immediate family.
As to the tenant's assertion that the subject landlord has not stated an
immediate and compelling necessity for the use and occupancy of the subject
apartment, the Commissioner finds that that assertion is without merit.
DOCKET NO.: HG420006RT
Based upon all of the evidence in the record, the Commissioner finds that
the subject landlord does not seek the subject tenant's apartment due to a
mere inconvenience, but that the subject landlord seeks the tenant's
apartment due to an immediate and compelling necessity. The Commissioner
finds, based upon the record, that the immediate and compelling necessity
consists of, among other things, that the current living conditions in the
top floor apartment place Frederick at risk "developmentally"; that the
current living conditions put Frederick at some increase risk of injury;
that the current living conditions have resulted in a lack privacy for the
individual occupants of the top floor apartment; that the top floor
apartment is too small for the daily living requirements of the occupants;
that the smallness of the top floor apartment is causing emotional and
physical stress in the occupants, and that by combining apartments 4 and 5
it would alleviate the above-mentioned problems created by the current
overcrowded conditions.
As the subject landlord has met all of the conditions for the granting of a
Certificate of Eviction, the Commissioner finds that it is not necessary to
determine the feasibility of the alternative plans submitted by the tenant.
Furthermore, the Commissioner notes that the Administrative Law Judge's
findings have determined that the subject tenant's alternative plans do not
"adequately compensate for the overall smallness of Apartment 5" relative to
the daily living requirements of the landlord's family.
The Commissioner finds that the subject tenant's petition and subsequent
submissions do not raise any issues which would warrant a revocation of the
Administrator's order.
Accordingly, the Commissioner finds that the Administrator's order should
not be disturbed.
The Commissioner points out that the Certificate of Eviction is being issued
on the condition that the subject apartment is to be altered for the use and
occupancy of the landlord's immediate family; that the subject landlord
shall continue to provide essential services to the subject apartment and
tenant so long as the subject tenant remains in lawful occupancy, and that
the subject landlord shall not violate any of the provisions of the rent
regulations so long as the subject tenant remains in lawful occupancy.
The Commissioner further points out that the D.H.C.R. has continuing
jurisdiction over the subject tenant and the subject apartment until the
actual date of eviction or the date the subject tenant voluntarily vacates
the subject apartment.
The owner is cautioned that the Certificate of Eviction may be modified or
revoked if the subject landlord does not comply with all of the terms and
conditions of the Administrator's order issued on June 4, 1993 under Docket
No. EG420005OE, and the applicable provisions of the rent regulations.
The Commissioner notes that the issuance of the Certificate of Eviction is
not an order to evict the subject tenant, but it only authorizes the subject
landlord to commence an eviction proceeding in a court of competent
jurisdiction.
DOCKET NO.: HG420006RT
The Commissioner further notes that the subject tenant may be lawfully
evicted only by a order issued by a court of competent jurisdiction.
Based on all of the aforementioned facts, the Commissioner finds that the
tenant's petition should be denied.
THEREFORE, in accordance with the City Rent and Rehabilitation Law and the
Rent and Eviction Regulations, it is
ORDERED, that the Administrator's order shall be modified to the extent that
court action to remove or evict the subject tenant shall not be commenced
sooner than three months from the issuance date of this order; and it is
ORDERED, that the tenant's petition be, and the same hereby is, denied, and
that the Administrator's order, as modified above, be, and the same hereby
is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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