In this personal use holdover proceeding the respondent moves to dismiss the petition on the grounds that 1) the petitioner is collaterally estopped from prosecuting this matter based on an Order from the Division of Housing and Community Renewal (DHCR) and 2) that the Notice of Petition is defective because it does not contain the stamp or signature of the court clerk.

The respondent resides at 192 Greenpoint Avenue, Apt. 1L 1st Floor, Brooklyn, New York 11222. The apartment is subject to rent stabilization by virtue of the fact that the premises contains 8 dwelling units. On September 30, 2005, the petitioner served the respondent, by conspicuous service, a "90 - 150 Day Notice", pursuant to Rent Stabilization Code (RSC) §2524.4 advising the respondent that her lease will not be renewed "in that the landlord needs the apartment for the use of himself and his immediate family."^[FN1] Combined with and incorporated therein, the petitioner further informed the respondent that her lease would expire on December 31, 2005 and that she was required to vacate the subject premises on or before that date.^[FN2] [*2]Immediately thereafter, on October 7, 2005, respondent filed a complaint with DHCR "that the owner failed to offer the tenant a renewal lease."

On January 26,2006, DHCR issued an "Order Directing Lease Renewal" which stated in relevant part:

After consideration of all the evidence in the record and pursuant to Sections 2522.5(b), (g), and 2523.5(a) of the Rent Stabilization Code, the Rent Administrator finds that the owner is required to renew the tenant's lease.

The tenant filed a lease violation complaint on October 7th, 2005 alleging that the owner refuses to offer her a renewal lease. This agency sent the owner a notice and transmittal of the tenant's complaint on the following dates: November 3rd, 2005, December 7th, 2005 and December 13th, 2005. To date the owner has failed to respond. Therefore, the tenant's allegation is deemed admitted. Based on the above, the tenant is entitled to a renewal lease.

Therefore, the Rent Administrator directs the owner to offer to the tenant within thirty (30) days of the date of this Order, a renewal lease for one or two years, at the tenant's option. (Emphasis added)

Instead of complying with said Order, the petitioner commenced the instant proceeding with a Petition and Notice of Petition dated February 10, 2006. The pleading was filed with the court clerk on March 8, 2006 and was calendared for March 23, 2006. After approximately eight (8) consent adjournments due to serious health related issues with the attorney for the petitioner, the Court marked this matter "Off Calendar" on January 23, 2007. On March 22, 2007, petitioner's attorney moved to restore the proceeding to the calendar. On May 14, 2007, the case was further adjourned to May 30, 2007, "final v. both sides". On May 30, 2007, the attorneys for both parties had an off the record discussion with the Court and thereafter submitted the motion to dismiss, affirmation in opposition and reply for determination by the Court. Petitioner maintains that service of the "Golub" notice prior to the respondent filing her complaint with DHCR removes this matter from DHCR's jurisdiction since it was the notice itself that formed the basis for the respondent's complaint and and that she failed to inform DHCR of her receipt of said notice. Petitioner further contends that this holdover proceeding is an independent action, permitted by the RSC and that the DHCR Order has no import under these circumstances.

Naturally, respondent's attorney contradicts this position and avers that the DHCR Order is binding on the petitioner and must be adhered to.

Notwithstanding petitioner's statutory right to refuse to offer a renewal lease when seeking to recover a rent stabilized unit for personal use, does an Order from DHCR directing the petitioner to offer the respondent a renewal lease take precedence over the "Golub" notice when the respondent's complaint was filed subsequent to the service of the "Golub" notice and there is no indication that DHCR was privy to said notice.?

Under the unique facts of this case, it is the opinion of the Court that this proceeding must be dismissed; that the petitioner must offer a proper renewal lease to the respondent and that the petitioner is barred from commencing any further holdover proceeding on the ground of personal use until the next "window period" begins, 90-150 days prior to the expiration of the new lease [*3]term of one or two years, at the respondent's option.

As this Court stated in Trojan v. Wisniewska, 8 Misc 3d 382, 388-389, 797 N.Y.S.2d 833:

There are, however, only two statutory grounds upon which a residential landlord is not required to offer a renewal lease:

(1) where the owner seeks to obtain the premises for his own personal use or for the personal useof family member (RSC § 2524.4(a));^[FN3] or (2) where the owner alleges that the tenant is notmaintaining the premises as his or her primary residence (RSC § 2524.4 (c)).

In either instance, the RSC mandates that the landlord serve a "written notice", generally denominated as a "Notice of Intent Not to Renew" or "Notice of Non-Renewal" and commonly referred to as a "Golub" notice (See,Golub v. Frank, 65 NY2d 900, 493 NYS2d 451, 483 NE2d 126 (1985)) during the same "window period" that the landlord would have offered a lease renewal if he or she were not seeking to terminate said tenancy (RSC § 2524.2(c)(2)(3)).^[FN4] [*4]

While this Court agrees with the petitioner's attorney that terminating a tenancy and refusing to provide a renewal lease where the landlord seeks to recover a rent stabilized apartment for personal use or for the use by an immediate family member is one of the two exceptions provided in the RSC for not offering a renewal lease, it was the petitioner's own inaction in failing to respond, not once, not twice, but three separate times to requests by DHCR to answer the respondent's complaint that resulted in an adverse order ^[FN5]. Had the petitioner simply appeared and/or provided documentary proof of service of the "Golub" notice prior to the respondent's complaint, the DHCR would have been obligated to dismiss the complaint. It is of no moment that the respondent, pro-se at the time, either intentionally or by innocent omission, failed to provide this information to the DHCR. The administrative agency is not duty bound to inquire beyond the four corners of a complaint that goes unanswered, unless the complaint itself appears to be fraudulent, erroneous or incredible on its face, in which case further inquiry would be warranted.^[FN6] The respondent's assertion that the petitioner refused to offer her a renewal lease, would not, in and of itself, trigger such an inquiry or investigation.^[FN7]

The issue is not the truth or accuracy of the proof upon which the [government agency] based its determination. It was, rather, the reasonableness of the [government agency's] conclusions. Where such Administrative determinations are made..., the court is not to substitute [*5]its judgment for that of the agency. Even though the court might have decided differently were it in the agency's position, the court may not upset the agency's determination... in the absence of a finding... that the determination had no rational basis. (Citation omitted)

Sanchez v, Columbus House Assoc., NYLJ, 7/2/03 p.22, col.1

In the case at bar, DHCR afforded the petitioner three separate opportunities to answer the complaint. For whatever unexplained reasons the petitioner chose to ignore DHCR's transmittals, he is now bound by the results, especially since he did not file a PAR (Petition for Administrative Review) within the requisite 35 days after the date the order was issued to appeal the decision. (See, RSC §§ 2529.1 - 2529.12)

As recently pointed out by the Appellate Division, 1st Dept., in Pultz v. Economakis, NYLJ, 2/15/07, p.18, col. 1, 2007 NY SlipOp 01380, (see also, Realty Law Digest, NYLJ, 5/3/07, p.5, col.1):

[T]he clear and unambiguous provisions of both the Rent Stabilization Law and Code permit an owner to recover an unlimited number of stabilized units for personal use and occupancy without DHCR approval, as long as good faith intent to use the premises as a primary residence is established. (Emphasis added)

Here, however, DHCR's intervention, as a direct consequence of the respondent's complaint, created a unique scenario that could have, and should have, easily been rectified by the petitioner. It appears that petitioner made a conscious decision not to participate in the DHCR proceeding. His attorney contends that "the issue before the DHCR is different then [sic] the issue presented before the court. Therefore, the DHCR decision is not dispositive of the issues before the court. The sole issue before DHCR was simply a tenant's request for a renewal lease. The issue before this Court involves an owner occupancy holdover proceeding, in which the owner properly seeks the subject apartment for a member of his immediate family. **** Therefore, the Decision in DHCR is extraneous and irrelevant to the matter before this Court." (Pet. Atty's Affirmation in Opposition, ¶¶ 5-6) Petitioner's attorney further argues that this matter should not be dismissed since it was never presented to the DHCR for adjudication or resolved in any forum. Counsel takes the position that the DHCR Order is merely providing a "general rule" that the tenant would be entitled to a renewal lease but that the applicable law pertaining to the exception for owner/personal use occupancy would render that Order moot.

Respondent's attorney refers to the doctrine of collateral estoppel as a basis for dismissal claiming that there is an identity of the issues in both the former and present proceedings and that the party against whom the collateral estoppel is to be used had a full and fair opportunity to litigate that issue in the prior proceeding.

While it cannot be said that the issue before the DHCR was identical, it certainly cannot be disputed that the petitioner was accorded his due process rights to a full and fair opportunity to be heard at which time he could have raised the issue of owner use occupancy. The fact of the matter is, the DHCR Order directing the landlord to offer a renewal lease to the tenant exists, in full force and effect, and this Court does not have the authority or jurisdiction to amend, modify, [*6]void or nullify it.^[FN8] Thus, the petitioner now finds himself in the corner he backed himself into and, therefore, must abide by DHCR's ruling in order to be extricated.

Accordingly, the first branch of the respondent's motion is granted and the petition is dismissed with prejudice. The second branch of the motion is denied as moot.

This constitutes the decision and order of the Court.

Dated: June 6, 2007___________________________

GEORGE M. HEYMANN, JHC