Docket No. AL 220018-RO
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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.AL 220018-RO
District Rent
Administrator's
DOCKET NO.
AC 620406-R
Equity Investments
c/o J.R.D. Management Corporation
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 2, 1986, the above-named landlord filed a
petition for administrative review of an order issued on November
24, 1986 by a Rent Administrator concerning the housing
accommodation known as Apartment 1B, 1460 College Avenue, Bronx,
New York.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issues raised by the administrative appeal.
This proceeding was commenced by the subject tenant filing a
rent overcharge complaint, dated March 4, 1986.
On April 17, 1986, the Division of Housing and Community
Renewal (D.H.C.R.) mailed to the landlord a copy of the tenant's
complaint, and a notice which informed the landlord that it had
twenty days from the above-mentioned date in which to submit an
answer.
On September 30, 1986, the D.H.C.R mailed a "final notice" to
the subject landlord stating that an answer had not been
interposed, and informed the landlord that if an answer is not
received by the rent agency with n twenty days of the above-
mentioned date, the proceeding would be determined based on the
record that was in front of the Administrator.
The record in front of the Administrator indicates that
the landlord did not submit an answer.
In the order here under review the Administrator determined
that the maximum collectible rent (MCR), effective January 1,
1983 through the issuance date of the administrator's order, was
$198.18 per month. (The Administrator's order stated that it did
not include the 1986 maximum base rent increase that the landlord
maybe entitled to collect).
Docket No. AL 220018-RO
The landlord's petition alleges that the Administrator's
determination is different from the rent that is listed in the
Office of Rent and Housing Maintenance-Rent Control Division's
rent roll, which the landlord attaches to its petition, which
lists the subject apartment's M.C.R. for January 1, 1983 as
$229.13 per month. The landlord's petition further asserts that
it submitted an answer to the Rent Administrator on October 17,
1986; that the Administrator's order contradicted the
aforementioned rent roll, and that the Administrator's order is
confusing in that it lists the M.C.R. as being $198.18 per month
from January 1, 1983 through the issuance date, but allows for an
increase in the 1986 maximum base rent (MBR).
To it's petition the landlord attaches a copy of it's answer
which was submitted to the Administrator, dated October 17, 1986.
After careful consideration, the Commissioner is of the
opinion that the landlord's petition should be denied.
The Commissioner finds, based upon the preponderance of the
evidence, that the landlord submitted an answer to the
Administrator.
Since the Administrator did not review the landlord's answer
to the tenant's complaint, the landlord's right to due process
was denied. However, it is not necessary to remand this
proceeding to the Administrator, because the Administrator's
order merely noted what the subject apartment's MCR was,
effective on January 1, 1983, based upon the rent agency's
record.
The Commissioner notes that under Administrative Review
Docket No. ARL 07452-B, the D.H.C.R. determined that the January
1, 1983 M.C.R. that was listed in the aforementioned rent roll
was in error, as it failed to take into account the fact that
the landlord was denied 1980-1981 MBR increases for the subject
apartment. Accordingly, the Commissioner finds that the landlord
is collaterally estopped from raising the issue of the
aforementioned rent roll in this proceeding.
Even if the issue of the rent roll could be properly raised it
should be noted that the rent agency's record notes that the
subject apartment's M.C.R. for January 1, 1983 is $198.18. As
the aforementioned rent roll is not an order, but is merely a
response to the landlord's request for information, the
Commissioner finds that any discrepancies between the
aforementioned rent roll and the rent agency's records must be
found in favor of the latter.
The record reflects that on October 7, 1985, the
Administrator issued an order, under Docket No. 6M 0318, denying
an MBR increase for 1984-1985, as the landlord had not properly
certified that it removed at least 80% of the rent impairing
violations that were on record as of January 1, 1983, or six
months prior to the filing of 1984-1985 violation certification,
whichever was later. As the aforementioned order denied an
increase of the 1984-1985 MBR, the subject apartment's M.C.R.
remained at $198.18 during the above-mentioned years.
Docket No. AL 220018-RO
The rent agency's record reflect that the landlord did not
file an appeal of the above-mentioned order (Docket No. 6M 0318).
Accordingly, the Commissioner finds that the Docket No. 6M 0318
is a final determination of the rent agency.
The Administrator's order in this proceeding merely noted the
subject apartment's M.C.R., as previously determined by a final
order of the rent agency, and therefore, the owner's petition is
an impermissible collateral attack of a final determination by
the rent agency. Accordingly, the Commissioner finds that the
Administrator's order should be affirmed.
As the order permanently increasing the 1986-1987 M.B.R. was
issued on June 29, 1988, almost two years after the issuance of
the Administrator's order, the Commissioner finds that the
Administrator's order was not "arbitrary and confusing", as it
was not known at the time the Administrator's order was issued
whether the 1986 M.B.R. would be increased or not.
THEREFORE, in accordance with the City Rent and
Rehabilitation Law and the Rent and Eviction Regulations, it is
ORDERED, that this petition be, and the same hereby is
denied, and that the District Rent Administrator's Order be, and
the same hereby is, affirmed.
ISSUED:
Joseph A. D'Agosta
Acting Deputy Commissioner
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