Landlord with Five Children Can Recover Apartment

Westchester landlord applied to the DHCR in February 1992 for permission not to renew tenant's lease and to recover possession of the apartment for owner occupancy. A hearing was held at which the ALJ found that landlord, his wife, and five children lived in a five-bedroom apartment next door to tenant. Landlord was also found to be acting in good faith and with compelling necessity. But the ALJ ruled against landlord because a three-bedroom basement apartment had become available in January 1991. Landlord didn't take that apartment or offer it to tenant. The ALJ also found that some DRA orders reducing rents for reduced services were proof that landlord was retaliating against tenant. Landlord appealed. The DHCR found a number of mistakes in the ALJ's order and ruled for landlord. The basement apartment in question had become available in January 1990, not 1991. At that time, landlord hadn't yet brought his children over from the Philippines. And if landlord had applied for owner occupancy in 1990, he wouldn't have had the required compelling necessity. The DHCR also rejected the retaliation finding. ''For the Commissioner to believe, then, that the landlords' primary motivation was retaliation against the tenant, because of her services complaints, the Commissioner would have to find that the landlords brought the five children from the Philippines for the primary purpose of retaliating against this tenant.''

De Grace: DHCR Adm. Rev. Dckt. No. IE 910033-RO (8/10/95) [8-page document]