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KEELER v. JOY

March 27, 1980

JACK KEELER and GRACE KEELER, EMILY RAMOS, ROSE MANN, JOHN NICHOLS, ETHEL McGINNITY, WILMA and JOHN HILBER, individually and on behalf of all others similarly situated, Plaintiffs, against DANIEL W. JOY, individually and as Commissioner of the Office of Rent and Housing Maintenance of the City of New York Department of Housing Preservation and Development, Defendant; FAY GENUARD, MARGARET J. LENNON and PATRICIA BUKAWYN, individually and on behalf of all others similarly situated, Plaintiffs, and RALPH GULVINO, et al., Plaintiff-Intervenors, against DANIEL W. JOY, individually and as Deputy Commissioner of the Office of Rent & Housing Maintenance of the City of New York, Department of Housing Preservation and Development, Defendant.


The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

The above-captioned cases commenced in separate districts (the Keeler case in this district on January 8, 1979 and the Genuard case in the Southern District on May 21, 1979) challenge the New York City Rent and Rehabilitation Law, Title Y, §§ 51-1.0 et seq., Administrative Code of the City of New York ("City Rent Control Law") claiming that said Law does not afford procedural due process to tenants in rent controlled apartments prior to eviction on grounds other than non-payment of rent or certain acts of misconduct. Specifically, plaintiffs claim that they are entitled to a "trial-type hearing" with adequate notice, a transcript of the proceedings and a personal consideration or review of the transcript by the ultimate administrative decision maker. They also complain that tenant plaintiffs are not timely or properly advised as to their rights as to counsel and are not given an opportunity to review recommendations and reports.

Plaintiffs seek to bring these actions as a class action on behalf of all others similarly situated and seek declaratory and injunctive relief. They have moved for (i) a preliminary injunction restraining the New York City Rent Commissioner from issuing certificates of eviction and staying all such certificates issued after July 1, 1978 pending the determination of this action, (ii) class action certification and (iii) summary judgment.

 The proceedings as to and the manner of treatment of each plaintiffs' and intervening plaintiffs' cases are different and the merits with respect to each undoubtedly bear little or no resemblance to one another, but this need not concern us here. Our inquiry is whether the City Rent Control Law violates the procedural due process, if any, to which tenant plaintiffs are entitled.

 The City Rent Control Law prescribes the circumstances under which a landlord may be entitled to a certificate of eviction (N.Y.C.Admin.Code § Y 51-6.0(b):

 
Subject to the provisions of paragraph (3) of subdivision c of section Y 51-13.0 of this title (relating to the termination of state rent control jurisdiction), no tenant shall be removed or evicted on grounds other than those stated in subdivision a of this section (relating to evictions without a Certificate of Eviction) unless on application of the landlord the city rent agency shall issue an order granting a certificate of eviction in accordance with its rules and regulations designed to effectuate the purposes of this title, permitting the landlord to pursue his remedies at law. The city rent agency shall issue such an order whenever it finds that:
 
(1) The landlord seeks in good faith to recover possession of a housing accommodation because of immediate and compelling necessity for his own personal use and occupancy or for the use and occupancy of his immediate family; provided, however, that where the housing accommodation is located in a building containing twelve or less housing accommodations and the landlord does not reside in the building and the landlord seeks in good faith to recover possession for his own personal use and occupancy, an immediate and compelling necessity need not be established; or
 
(2) The landlord seeks in good faith to recover possession of a housing accommodation for which the tenant's lease or other rental agreement has expired or otherwise terminated, and at the time of termination the occupants of the housing accommodation are subtenants or other persons who occupied under a rental agreement with the tenant, and no part of the accommodation is used by the tenant as his dwelling; or
 
(3) The landlord seeks in good faith to recover possession of a housing accommodation for the immediate purpose of substantially altering or remodeling it, provided that the landlord shall have secured such approval therefor as is required by law and the city rent agency determines that the issuance of the order granting the certificate of eviction is not inconsistent with the purpose of this title; or
 
(4) The landlord seeks in good faith to recover possession of housing accommodations for the immediate purpose of demolishing them, and the city rent agency determines that such demolition is to be effected for the purpose of constructing a new building, (provided that the landlord comply with requirements relating to the number of new units and relocating tenants)

 Section Y 51-8.0 subd. c of said Law provides that

 
"Any proceedings under this section may be limited * * * to the filing of affidavits, or other written evidence, and the filing of briefs * * *." (Emphasis added).

 Section 55 of the New York City Rent & Evictions Regulations promulgated under Title Y of Chapter 51 provides that:

 
"Sec. 55. Occupancy by landlord or immediate family
 
a. A certificate shall be issued where the landlord seeks in good faith to recover possession of a housing accommodation because of immediate and compelling necessity for his own personal use and occupancy, or for the use and occupancy of his immediate family * * * As used in this paragraph, the term "immediate family" includes only a son, daughter, grandson, granddaughter, stepson, stepdaughter, father, mother, father-in-law, mother-in-law, grandfather, grandmother, stepfather or stepmother."

 With respect to the procedure for obtaining a certificate of eviction, section 85 of said Regulations provides that:

 
At any stage of a proceeding the District Rent Director may :
 
a. Reject the application if it is insufficient or defective.
 
b. Make such investigation of the facts, hold such conferences, and require the filing of such reports, evidence, affidavits, or other material relevant to the proceeding, as he may deem necessary or appropriate.
 
c. Forward to or make available for inspection by either party any relevant evidence and afford an opportunity to file rebuttal thereto.
 
d. For good cause shown, accept for filing any papers, even though not filed within the time required by these Regulations.
 
e. Require any person to appear or produce documents, or both, pursuant to a subpoena issued by the Administrator.
 
f. Consolidate two or more applications or proceedings which have at least ...

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