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






      --------------------------------------X
      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                     
                                            :
      --------------------------------------X            


             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.









          DOCKET NO.:  HG420006RT

      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 



          DOCKET NO.:  HG420006RT

      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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