ADM. REVIEW DOCKET NO.: BA610098RT
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.: BA610098RT
JAMES McDERMOTT
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: 7MBC00012(7MI01893)
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named tenant filed a timely petition for
administrative review of an order issued concerning the housing
accommodations located at 1774 Eastburn Avenue, Apt. 3H, Bronx,
N.Y.
The Commissioner has reviewed all the evidence in the record
and has carefully considered that portion of the record relevant to
the issues raised by the petition.
The issue on appeal is whether the Administrator's order was
correct.
The instant proceeding was commenced by the tenant's filing of
a Challenge to the Order of Eligibility granting the owner the
right to raise Maximum Base Rents (MBR) at the subject premises for
the period 1986/87. The Administrator affirmed the Order of
Eligibility, finding that, contrary to the tenant's Challenge the
owner had made sufficient repairs to warrant the Violation
Certification for the subject premises.
On appeal, the tenant generally reiterates the allegations he
made in his Challenge below. The tenant alleges that the requisite
number of Rent Impairing and Non-Rent Impairing Violations were not
repaired by the owner. the tenant then expands on this general
allegation by alleging various specific violations. Among these
allegations are several concerning fuel supply to the subject
premises and the fuel costs charged to the tenant. The tenant
requests that this proceeding be merged with a Fuel Cost Passalong
ADM. REVIEW DOCKET NO.: BA610098RT
proceeding then pending. (The tenant gives the docket number of
this proceeding as BC000002F). The tenant further requests that
the D.H.C.R. subpoena the oil company's records. In an allegation
unrelated to violations (and previously made by the tenant in his
Challenge), the tenant alleges that the Notice of Eligibility
served upon him by the owner, said Notice notifying the tenant that
the owner had been granted eligibility to raise the MBR, had not
been signed or dated by the owner. The tenant alternatively
alleges that he had not been served with the Notice on a timely
basis, but that the owner "back-dated" the Notice when signing it.
The Commissioner is of the opinion that this petition should
be denied, and that the Administrator's order be affirmed as
modified.
An examination of the record reveals that both the New York
City Department of Housing Preservation and Development Inspection
Report and the List of Pending Violations both report that the
requisite number of violations had been repaired, and that the
Administrator's order, which was issued on December 5, 1986 advised
the tenant to file a Service Complaint, if he felt that the owner
had not repaired the violations. The tenant apparently followed
this advice because the tenant filed a service complaint with the
Administrator on January 7, 1987 under docket number BA620099S in
which he reiterated the specific violation allegations he has made
in the instant proceeding. The Commissioner notes that, on August
20, 1987 the Administrator found for the tenant and ordered the
owner to restore services and reduce the tenant's rent by $5.00 per
month. The Commissioner is thus of the opinion that the tenant's
specific allegations concerning violations were disposed of by
Administrator's order BA620099S.
As to the tenant's allegations on appeal concerning fuel cost.
An examination of the record reveals that the tenant has not
demonstrated sufficient similarity of issue in order to merge the
instant proceeding with the fuel cost passalong proceeding, as
requested by the tenant. Moreover, an examination reveals that the
docket number cited by the tenant, (BC000002F) does not refer to
the instant tenant, or to the subject premises.
As to the tenant's allegations concerning the Notice of
Eligibility. An examination of the record reveals that the tenant
enclosed a copy of the Notice with his appeal, and that this copy
was signed and dated by the owner. A further examination of the
record reveals that the tenant made the identical allegation of
late service in his Challenge to the Order of Eligibility. The
Commissioner notes that the Order of Eligibility was issued on July
17, 1986. The owner then had 60 days (i.e., until September 15,
ADM. REVIEW DOCKET NO.: BA610098RT
1986) in which to serve the tenant with the aforesaid Notice. If
the owner served the tenant with the Notice after September 15,
1986 the MBR increase would be collectible retroactively only. The
tenant filed his Challenge (including the allegation of late
filing) on August 31, 1986-well within the 60-day limit.
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations, it is
ORDERED, that this petition for administrative review be, and
the same hereby is, denied, and that the order of the Rent
Administrator be and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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