ADM. REVIEW DOCKET NO. BI420320RT
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. BI420320RT
DISTRICT RENT
ADMINISTRATOR'S DOCKET
LILLIAN M. BRUCE, NO. 7MBC00031M
(7M03358M)
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 23, 1987, the above-named tenant filed a petition
for administrative review of an order issued on September 4, 1987
by the Administrator concerning the housing accommodation known as
Apartment 7-C, 231 East 76th Street, New York, 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 petition for administrative
review.
The issue in this proceeding is whether the Administrator
properly granted the subject landlord maximum base rent (MBR)
increases for the 1986-1987 biennial cycle.
On September 4, 1987 the Administrator issued the order under
review herein, under Docket No.7MBC00031M, granting the subject
landlord MBR increases for the 1986-1987 period, effective as of
January 1, 1986.
In her petition the subject tenant asserts, among other
things, that the Administrator's order under review herein should
be revoked for the following reasons:
1) That the Administrator "failed to take into
consideration the owner's failure to refute
the tenant's allegations of fraud and
harasment (sic)";
ADM. REVIEW DOCKET NO. BI420320RT
2) That the subject landlord "erroneously"
listed five "full-time unionized
employees in order to obtain a
substantial MBR increase in 1972";
3) That the subject building service
employees consist of a superintendent,
and two doormen (one works from 3:00
P.M. to midnight and the other works
from midnight to 8:00 A.M.);
4) That as there are three service
employees employed in the subject
building the subject building should
not be considered as a "High Payroll
Building," as listed in the landlord's
"Operation and Maintenance and Essential
Services Certification" form, but rather
should be considered as a "Normal Payroll
Building";
5) That in 1972 the subject landlord submitted
to the rent agency a room count of 239, but
"pursuant to an inspection by HPD, the room
count was reduced to 175," and as such there
should have been a reduction in the MBR and
the apartment's maximum rent, and
6) That in a prior order issued by the Civil
Court-County of New York, the court determined
that the subject landlord was harassing the
subject tenant.
Subsequently to the filing of her petition, the subject tenant
submitted to the rent agency voluminous submissions pertaining to,
among other things, alleged plumbing violations in the subject
apartment. The earliest plumbing violation that is being alleged
by the tenant was reported to the Department of Housing
Preservation and Development (HPD) on March 12, 1986.
After careful consideration, the Commissioner is of the
opinion that the subject tenant's petition should be denied.
The record reflects that the Administrator's order under
review herein was based upon a finding that the subject landlord
had met the violation certification requirements, and other
requirements for eligibility for an MBR increase for the 1986-1987
period.
Pursuant to Section 2202.3(h) of the City Rent and Eviction
Regulations, to be eligible for an MBR increase for the 1986-1987
ADM. REVIEW DOCKET NO. BI420320RT
period effective as of January 1, 1986, based on the prescribed
violation certification requirements, the landlord had to remove
all of the "rent impairing violations" which were on record as of
January 1, 1985 and had removed eighty percent of all other
violations which were on record January 1, 1985 at least six months
prior to January 1, 1986.
The record reflects that the subject landlord did in fact
remove the required number of violations to be eligible for the MBR
increases for the 1986-1987 period effective January 1, 1986.
The Commissioner notes that the earliest date a plumbing
violation, as alleged by the subject tenant, was reported to HPD
was on March 12, 1986. Accordingly, the Commissioner finds that
the "plumbing violations," as alleged by the subject tenant, has no
relevance in determining the subject landlord's eligibility for MBR
increases for the 1986-1987 period, as those violations were not on
record with HPD as of January 1, 1985, pursuant to the above-
mentioned Section 2202.3(h) of the City Rent and Eviction
Regulations.
The record further reflects that the subject landlord properly
filed the "Operation and Maintenance and Essential Services
Certification" form for the 1986-1987 biennial cycle.
As to the subject tenant's allegation that the landlord should
not be eligible for MBR increases as, the tenant asserts, the
landlord has been engaging in a course of conduct constituting
harassment, the Commissioner notes that the rent agency's records
do not show any orders issued by the rent agency finding harassment
by the subject landlord. The Commissioner further notes that for
a landlord to be denied MBR increases based upon a finding of
harassment, such a finding is to be made by the rent agency,
pursuant to the applicable rent regulations.
As the rent agency has not issued any orders finding
harassment by the subject landlord, the Commissioner finds that the
subject tenant's assertion that the landlord is not eligible for
MBR increases due to a finding of harassment is without merit.
The Commissioner notes, based on the record in this
proceeding, that the aforementioned court order cited in the
tenant's petition did not make a determination as to the landlord's
eligibility for MBR increases.
As to the other issues raised in the subject tenant's
petition, the Commissioner finds that they are impermissible
collateral attacks on prior final determinations of the rent
agency, and as such are outside of the Commissioner's scope of
ADM. REVIEW DOCKET NO. BI420320RT
review in this proceeding.
Even if the other issues raised by the subject tenant were
properly before the Commissioner, the Commissioner is of the
opinion that the subject tenant does not raise any issues that
would warrant the revocation of the Administrator's order.
The Commissioner notes that, based on the rent agency's
record, the subject building has been classified as a "High
Payroll" building since 1972. If the subject tenant is alleging
that there has been a decrease in the number of employees employed
in the subject building, the Commissioner notes that the subject
tenant's remedy is to file an application with the rent agency for
a rent reduction due to a diminution of services.
The Commissioner further notes, that on August 27, 1975 the
rent agency recalculated the subject building's MBR for the 1972-
1973 period, as it was determined that the subject building only
contained 175 rooms and not the 261 rooms that was registered with
the rent agency in 1972. The recalculation reduced the subject
tenant's MBR for the 1972-1973 period from $258.23 per month to
$245.77 per month, taking into account that the subject apartment
contained two rooms.
Accordingly, on the basis of the entire record, the
Commissioner finds that the Administrator's order should not be
disturbed.
THEREFORE, in accordance with the City Rent and Rehabilitation
Law and the Rent and Eviction Regulations, it is
ORDERED, that the tenant's petition be, and the same hereby
is, denied, and that the Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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