ADM. REVIEW DOCKET NOS. HJ420127RO, ETC.
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 S.J.R. NO. 7356
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS. HJ420127RO,
HJ420142RO, and
HJ420143RO
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NEW SCHOOL FOR NOS. DJ420010OE,
SOCIAL RESEARCH, DJ420011OE, and
PETITIONER DJ420013OE
------------------------------------X
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
On October 22, 1993, the above-named landlord filed petitions
for administrative review of orders issued on September 17, 1993 by
a Rent Administrator concerning the housing accommodations known as
Apartments 2, 4 and 5, respectively, at 68 Fifth Avenue, New York,
New York.
Subsequently, and after more than ninety days had elapsed from
the time it filed its petitions for administrative review, the
landlord deems its petitions as having been denied, and sought
judicial review in the Supreme Court of the State of New York
pursuant to Article 78 of the Civil Practice Law and Rules.
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 notes that the aforementioned petitions for
administrative review involve common issues of law and fact. The
Commissioner is accordingly of the opinion that they should be
consolidated for disposition.
The Commissioner has reviewed all the evidence in the record
and has carefully considered that portion of the record relevant to
the issues raised by the administrative appeals.
ADM. REVIEW DOCKET NOS. HJ420127RO, ETC.
On October 20, 1989, the subject landlord filed three separate
applications with the D.H.C.R. for an order granting the landlord
the right to proceed for an eviction of the subject tenants. The
landlord bases its application on its alleged intent to withdraw
the subject housing accommodations from the rental market.
To its applications the landlord attached, among other things,
an affidavit prepared by the landlord's Vice President for
Administration and Finance which stated that "it is our intention
to permanently withdraw the entire building from the rental market
for the purposes of using it for educational and related
administrative use."
The Administrator requested that the Hearing Bureau of the
D.H.C.R. conduct a hearing to determine the merits of the
landlord's applications.
Hearings were held on several dates throughout 1992, wherein
the subject tenants and landlord were represented. The
Administrative Law Judge made, among other things, the following
determinations:
1. That the landlord seeks Certificates of
Eviction so that it can withdraw three
separate rent controlled housing
accommodations from the rental market
so that they can be used for educational
and administrative purposes, pursuant to
Section 2204.9(a)(3) of the City Rent and
Eviction Regulations;
2. That the subject landlord, The New School
for Social Research, is "found to be a
university operated exclusively for its
educational purposes, on a not-for-profit
basis";
3. That the subject landlord intends to
withdraw the subject apartments from
the housing and non-housing markets,
and that the landlord has made a
decision to put the housing accommodations
"to some school-related use";
4. That the landlord credibly testified that
it will not use the subject apartments for
the occupancy of employees, students and
staff;
5. That the Department of Buildings had approved
the landlord's architectural plans for the
ADM. REVIEW DOCKET NOS. HJ420127RO, ETC.
proposed renovations of the subject apartments;
6. That the subject landlord has sufficient funding
to complete the proposed renovations;
7. That the subject landlord had previously recovered
two residential units in the subject building,
formerly Apartments 3 and 7, and that they both
have been converted into offices;
8. That the former Apartment 3, in the subject
building, was used as an office by a professor
until his death in March, 1991;
9. That one of the landlord's representatives
testified that the above-mentioned office
"had not been used, except by an executrix,"
since the aforementioned professor's death;
10. That a former part of Apartment 3, now called
Room 3A, was created in 1991 and is used by a
school faculty advisor for two or three hours
a week;
11. That the former Apartment 7 is used by three
college personnel, one uses it for one hour
each week, and the other two use the office
for less than two hours weekly;
12. That the available offices in the subject
building are "underutilized";
13. That, although the approved architectural
plans designated the intended use of the
subject apartments as "office," the subject
landlord "never identified specifically,
how it planned to use the subject apartments";
14. That the subject landlord owns several premises
which contain vacant offices, and which are
"geographically close" to the subject building;
15. That a representative of the subject landlord
testified that the school does not have a
process through which it can identify vacant
space;
16. That the subject landlord has not explained
"the nonuse or underutilization of available
space in close proximity to the units sought";
ADM. REVIEW DOCKET NOS. HJ420127RO, ETC.
17. That, pursuant to the applicable rent
regulations, the subject landlord must
establish that it requires the subject
apartments "for its own immediate use
in connection with its educational
purposes";
18. That, based on the record, the subject
landlord has not established, by
substantial evidence, that it requires
the subject apartments "for its own
immediate use in connection with its
educational purposes," and
19. That, based on the aforementioned findings,
the subject landlord's applications for
Certificates of Eviction should be denied.
In the orders under review herein, the Administrator "adopted"
the Administrative Law Judge's findings and recommendations, and
that the Administrator denied the landlord's applications for
Certificates of Eviction.
In its petitions for administrative review the landlord
asserts, among other things, that the Administrative Law Judge
(ALJ) improperly required the landlord to show that it has an
"immediate need for the Apartments"; that, the landlord states
that: "By requiring a showing of need, the ALJ contravened well-
established case law that a not-for-profit educational institution,
such as the New School, need only show that it intends to use the
premises in connection with its educational facilities"; that the
ALJ made a finding that the landlord intends in good faith to use
the subject apartments for educational purposes; that the ALJ's
findings "of good faith and intent to use the Apartments for
educational purposes were more than sufficient to support the
granting of the certificates of eviction"; that in seeking a
Certificate of Eviction, pursuant to Section 2204.9(a)(3) of the
City Rent and Eviction Regulations, a charitable organization "is
not required to justify its proposed use, or averred need, as a
prerequisite to obtaining such a certificate"; that, the landlord
states, "By requiring the New School to demonstrate and justify its
plans for immediate use of the Apartments, the ALJ misapplied the
legal standard and his decision should accordingly, be reversed,"
and that to support its aforementioned allegations the landlord
cites the following New York court cases: Village Tenth Co. V.
Walsh, 40 A.D.2d 969, 338 N.Y.S. 2d 671 (1972); Application of
Wade, 29 Misc. 2d 112, 210 N.Y.S.2d 163 (1960); Engle V. Weaver 11
Misc. 2d 459, 174 N.Y.S.2d 564 (1958); Hughes V. Weaver, 11
Misc. 2d 821, 178 N.Y.S. 2d 440 (1957); Application of Asco
ADM. REVIEW DOCKET NOS. HJ420127RO, ETC.
Equities, Inc. V. McGoldrick, 285 A.D. 381, 137 N.Y.S.2d 446
(1955).
In the tenants' response they assert, among other things, that
as the applicable rent regulations contain the words "immediate
use," the ALJ properly made a finding as to whether the landlord
requires the subject apartments for its "immediate use"; that the
subject landlord did not "identify any immediate need for the
subject apartments," and that, the tenants state, "the New School
had no plans to put the tenants' apartments to immediate use and,
in fact, had no need for the space to begin with."
After careful consideration, the Commissioner finds that the
landlord's petitions should be denied.
The applicable rent regulation in this proceeding is Section
2204.9(a)(3) of the City Rent and Eviction Regulations. Pursuant
to the above-mentioned rent regulation, the rent agency shall grant
a landlord's application for a Certificate of Eviction when the
following conditions are met:
Where the landlord is a hospital, convent,
asylum, public institution, college, school
or any institution operated exclusively for
charitable or educational purposes on a
nonprofit basis, that the landlord requires
the housing accommodations or the land, or
any part thereof, for its own immediate use
in connection with its charitable, religious
or educational purposes....
Pursuant to the clear language and intent of the above-
mentioned section of the rent regulations, the Commissioner is of
the opinion that one of the conditions the subject landlord must
meet in order for the rent agency to issue a Certificate of
Eviction is that the landlord must establish that it requires the
subject apartments for its own immediate use in connection with its
educational purposes.
Accordingly, the Commissioner finds that it was proper for the
ALJ to make a determination pertaining to the issue of whether the
landlord requires the subject apartments for its own immediate use.
The Commissioner points out that the ALJ's findings were based
on several days of oral testimony by the subject tenants and
witnesses for the subject landlord, and documentary evidence
submitted by the landlord at the hearings. The Commissioner
further points out that the record contains transcripts of the oral
testimonies given during the hearings.
As previously noted, the ALJ made a finding, based on the
ADM. REVIEW DOCKET NOS. HJ420127RO, ETC.
evidence, that the subject landlord does not require the subject
apartments for its own immediate use in connection with its
educational purposes.
The Commissioner finds that the subject landlord, in its
petitions for administrative review, does not refer to any evidence
in the record which would establish that the ALJ's findings and
recommendations should not have been adopted by the Administrator
in the orders under review herein.
The Commissioner takes note that several court cases cited in
the landlord's petitions defined "immediate," as used in the
applicable rent regulation, as not meaning "instantaneously,
without any delay, or any time intervening, but within a reasonable
time, without unreasonable or unnecessary delay, having due regard
to the nature and circumstances of the particular case." See,
Hughes V. Weaver, 11 Misc. 2d 821, 178 N.Y.S. 2d 440, 442 (1957).
As the record reflects that the former apartments in the
subject building which have been converted into offices are either
underutilized or have remained vacant; that the subject landlord is
not able to state specifically how it plans to utilize the subject
apartments; that the subject landlord can not specify when the
subject apartments would be utilized for educational purposes if
the subject tenants were evicted; that the subject landlord owns
several buildings near the subject building which contain vacant
offices; and that the subject landlord is not aware of how many
vacant offices are contained in its buildings, the Commissioner is
of the opinion that the subject landlord has not established that
if the subject tenants were evicted the subject apartments would be
utilized for educational purposes within a reasonable time
subsequent to the landlord obtaining possession of the subject
apartments. Accordingly, the Commissioner finds that the subject
landlord has not showed that it requires the subject apartments for
its own immediate use for its educational purposes.
As to the landlord's assertion that the ALJ's finding that the
landlord, in good faith, intends to withdraw the subject apartments
from the rental markets and put them to "some school-related use"
should be sufficient for the rent agency to grant the landlord's
applications, the Commissioner finds that that assertion is without
merit.
As the subject landlord has not met all of the conditions set
forth in the aforementioned applicable rent regulation, the
Commissioner finds that the subject landlord does not qualify for
ADM. REVIEW DOCKET NOS. HJ420127RO, ETC.
Certificates of Eviction in this proceeding.
Based on the above-mentioned, the Commissioner finds that the
Administrator's orders under review herein should not be disturbed.
As to the landlord's assertion that its applications for
Certificates of Eviction were improperly denied based on the ALJ's
finding that the subject landlord did not need the subject
apartments, the Commissioner finds that that assertion is without
merit. The Commissioner is of the opinion that the issue of the
landlord's need for the subject apartments was not a determinative
factor in the Administrator's findings in this proceeding; but,
rather, the determinative factor was the Administrator's finding
that the subject landlord has not showed that if the subject
tenants were evicted it would utilize the subject apartments for
its educational purposes within a reasonable period of time
subsequent to the landlord taking possession of the subject
apartments.
The Commissioner is of the opinion that the ALJ's findings and
the Administrator's orders are not contrary to the holdings in the
aforementioned court cases cited by the landlord in its petitions.
The Commissioner is of the opinion that the aforementioned
court cases do not hold that the issue of "immediate use" is
irrelevant in determining whether a landlord, pursuant to Section
2204.9(a)(3) of the City Rent and Eviction Regulations and its
predecessors, is entitled to a Certificate of Eviction. The
Commissioner is further of the opinion that the aforementioned
court cases hold that for the landlord to be eligible for a
Certificate of Eviction it must meet the conditions specified in
the applicable rent regulation. As the applicable rent regulation
in this proceeding requires a showing of "immediate need," the
Commissioner finds that the subject landlord's interpretation of
the aforementioned court cases as they pertain to the issues in
this proceeding is incorrect.
The Commissioner points out that in footnotes five and six of
the landlord's petitions it cites the case of In re Application of
Whitney Museum of American Art V. New York State Division of
Housing and Community Renewal, 139 A.D.2d 444, 527 N.Y.S.2d 26
(1988). In the above-mentioned case, which involved a museum
seeking Certificates of Eviction for ten rent controlled
apartments, the court remitted the proceeding to the D.H.C.R., and
the court directed the rent agency to conduct "a hearing as to the
Museum's good faith intention to withdraw the subject housing
accommodations for its own immediate use in connection with its
educational purposes." See, In re Application of Whitney Museum of
American Art, 527 N.Y.S.2d at 29.
ADM. REVIEW DOCKET NOS. HJ420127RO, ETC.
In the aforementioned case of Hughes V. Weaver, the court
affirmed the rent agency's granting of the landlord's, Roosevelt
Hospital, applications for Certificates of Eviction. The court
distinguished its determination from prior cases cited by the
tenants, in which the landlords' applications for Certificates of
Eviction were denied, by pointing out that Roosevelt Hospital had
showed that it needed the housing accommodations for its immediate
use; but, that in the cases cited by the tenants (New York
University V. McGoldrick, 205 Misc. 790, 129 N.Y.S.2d 77 and
Trustees of Columbia University V. Weaver, N.Y.L.J., Oct. 23, 1956,
p. 7, col. 4), as pointed out by the court, the landlords had not
showed that they needed the housing accommodations for their
immediate use. See, Hughes V. Weaver, 178 N.Y.S.2d 440, 442.
Accordingly, the Commissioner is of the opinion that the
Administrator's denial of the subject landlord's applications based
on a finding that the landlord has not showed that it requires the
subject apartments "for its own immediate use in connection with
its educational purposes" was not contrary to the holdings in the
court cases cited by the subject landlord.
After reviewing all the evidence in the record, the
Commissioner adopts the findings and recommendations of the ALJ.
Accordingly, the Commissioner finds that the landlord's
petitions should be denied.
THEREFORE, in accordance with the City Rent and Rehabilitation
Law and the Rent and Eviction Regulations, it is
ORDERED, that the landlord's petitions be, and the same hereby
are, denied, and that the Administrator's orders be, and the same
hereby are, affirmed.
ISSUED:
ADM. REVIEW DOCKET NOS. HJ420127RO, ETC.
LULA M. ANDERSON
Deputy Commissioner
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