Landlord Can Demolish Three-Family House and Evict Tenant

Landlord applied for permission to terminate rent-controlled tenant's tenancy and demolish a three-family house. The other two apartments were vacant. The DRA ruled for landlord, finding that landlord had established its good-faith intent to demolish the building, had submitted approved plans for the demolition, and demonstrated its financial ability to complete the project. Tenant appealed, but his PAR was rejected on procedural grounds. Tenant then filed an Article 78 court appeal of the DHCR's decision.

Landlord, tenant, and the DHCR agreed that the DHCR would take the case back to make a decision on the merits of tenant's PAR. Tenant argued that: (a) the DRA should have relied on DOB definition of "demolition," not the DHCR's definition, since those definitions conflict in relation to the building plans; (b) the self-certified plans of landlord's architect were insufficient to warrant demolition approval by the DHCR; (c) the DRA's order didn't sufficiently address the relocation stipend that was owed to tenant in the event of eviction; and (d) the DRA's ruling was prejudiced by missing or damaged portions of recordings of a hearing it held before deciding the case.

The DHCR ruled against tenant. DOB's definition of "demolition" requires a complete destruction of both the inner and outer structure of a building. But the rent control law doesn't require the DHCR to adopt that definition. And appeals court decisions have upheld the DHCR's standard, requiring an intent to gut the interior of a building while leaving the walls intact so as to be able to "stand in the cellar and look up at the sky." The architect's self-certified demolition plans were approved by DOB and tenant failed to prove that landlord's architect should be excluded from the professional certification program. DHCR Operational Bulletin 2009-1 didn't require the DHCR's hearing officer to make any determination about stipend or relocation conditions, and the DRA typically leaves it to landlords to comply with stipend/renovation requirements, including a Demolition Stipend Chart, set forth in the Operational Bulletin. Finally, tenant didn't point to any specific instance where lost or damaged portions of the DRA's audio hearing files affected his case.

Bonilla: DHCR Adm. Rev. Docket No. GT220005RP (10/17/18) [12-pg. doc.]