STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE :
APPEAL OF ADMINISTRATIVE REVIEW
: DOCKET NO. BK 410149-RT
FRANK HEFTER, DISTRICT RENT ADMINISTRATOR'S
: DOCKET NOS. 7MBC00332-M
ORDER AND OPINION REMANDING PROCEEDING TO THE RENT ADMINISTRATOR
On November 12, 1987, the above-named tenant timely filed a petition for
administrative review of an order issued on June 10, 1987 by a Rent
Administrator concerning the housing accommodation known as Apartment 3-B,
38 East 75th Street, New York, New York.
This proceeding was initiated by the rent agency issuing an order on April
1, 1987, under Docket No. 7M10569-M, which denied the establishment of the
1986-1987 maximum base rents (MBR) for the subject building on the grounds
that the landlord, "failed to properly certify to the required expenditure
level for operation and maintenance of the subject building and maintenance
of essential services."
On May 4, 1987, the subject landlord filed the required "Operation and
Maintenance and Essential Services Certification" for the 1986-1987 MBR, in
which the subject landlord listed the subject building as having nineteen
On June 10, 1987, the Administrator issued the order under review herein
which determined that the subject landlord "has met the prescribed violation
certification requirements for current MBR increases"; that the MBR
effective date was September 1, 1987, and that the rent agency's earlier
order, under Docket No. 7M10569-M, was revoked. Attached to the order under
review herein was the "Final Computed Order of Eligibility - Maximum Base
Rent 1986 - 1987," which determined that the effective date of the order was
May 1, 1986; that "Failure to serve this Order and appropriate Notice with
attachments, if any, within 60 days of either the issue date of this Order
or of its effective date, whichever is later, causes this increase to be
collectible prospective only," and that the above-mentioned order of
eligibility listed the subject building as containing fifteen rooms, nine
apartments and five floors above street level for purposes of calculating
the 1986 - 1987 MBR for the subject building.
DOCKET NO.: BK 410149-RT
The tenant's petition asserts, among other things, that the subject tenant
did not receive the order under review herein, and the "Final Computed Order
of Eligibility," until October 13, 1987; that the subject tenant did not
receive prior notice that the landlord was applying for eligibility into the
MBR system or notice that the landlord was applying for an MBR increase;
that if the service of the aforementioned orders is deemed to be proper then
the MBR increase should be prospective only; that the subject building
contains eight apartments that are rented to tenants, and the landlord's
apartment which is either a duplex or a triplex; that there are no tenants'
apartments on the ground floor and the subject building has only four
floors; that there are no two-room apartments except for the landlord's
apartment; that all of the tenants' apartments contain only one room; that
the total room count of fifteen used in the "Final Computed Order of
Eligibility" to calculate the building's 1986-1987 MBR is incorrect; that
the subject tenant disputes the description of the "Annual Payroll" as
"normal" as the tenant alleges that there is no full-time janitor or
superintendent who lives in or near the building; that the tenant asserts
that there is a diminution of services in the subject building, and that the
tenant states that "since the room count and total apartment number are
falsely states, the derivative MBR figures for both 1986 - 1987 are
incorrect and no rent increases are warranted based upon this application by
On January 6, 1988, the subject landlord filed his answer to the tenant's
petition, which asserts, among other things, that the aforementioned orders
were served on the subject tenant within sixty days of their issuance dates;
that the subject apartment and Apartment 4-B should have been listed as one-
room apartments and not two-room apartments, "thereby reducing the total
number of rooms from 15 to 13"; that the landlord asserts that his mistake
in calculating the room count does not affect his eligibility to collect MBR
increases; that there is no record of violations in the subject building;
that the subject building has five floors, and nine apartments, including
the landlord's apartment; that the landlord asserts that as the building's
Certificate of Occupancy lists nine apartments for the subject building and
both the landlord and the managing agent reside in the subject building, the
landlord is not required to provide a full-time resident superintendent;
that the landlord's payroll is a "normal payroll building," and that the
subject tenant has two air conditioners in his apartment and therefore an
additional $10.00 should be added to the tenant's rent.
After careful consideration, the Commissioner is of the opinion that this
proceeding should be remanded to the Rent Administrator.
As the subject landlord and tenant both concede that the subject apartment
contains one room, the Commissioner finds that the subject apartment
contains one room.
The Commissioner finds that in calculating the building's 1986-1987 MBR it
was proper for the Administrator to have counted the landlord's apartment in
determining the building's total number of apartment. The Commissioner
notes that even if the landlord's apartment were a duplex or a triplex
apartment, as the tenant alleges, the landlord's apartment would still count
as only one apartment for the purpose of calculating the building's MBR.
Accordingly, the Commissioner finds that for purposes of determining the
building's 1986-1987 MBR, the building contains nine apartments.
DOCKET NO.: BK 410149-RT
As the subject building contains nine apartments, and it is undisputed by
the parties to this proceeding that the landlord resides in the subject
building, the Commissioner finds, pursuant to Section 83 of the Multiple
Dwelling Law , that the landlord is not required to have a superintendent
residing on the premises.
Pursuant to Section 2201.4 of the Rent and Eviction Regulations, "a building
shall be deemed to be a 'normal payroll building' if the expenses for labor,
including wages and fringe benefits for all employees engaged in operation,
maintenance and service of the building, do not exceeds $300 per year times
the number of housing accommodations in the building."
As the subject landlord had alleged on his "Operation & Maintenance and
Essential Services Certification" for the 1986-1987 Maximum Base Rents that
the subject building is a "Normal Payroll Building," and the subject tenant
has not submitted any evidence to the contrary, the Commissioner finds that
the subject building should be deemed to be a "normal payroll building."
The Commissioner notes that the record reflects that the subject landlord
has met the prescribed violation certification requirements for the
building's 1986-1987 MBR cycle.
As to the diminution of services alleged by the tenant, the Commissioner is
of the opinion that the tenant's remedy is to file a complaint with the rent
agency for a reduction of rent.
Accordingly, the Commissioner finds that the Administrator's determination
that the subject landlord is eligible for an increase in the building's
1986-1987 MBR should not be disturbed.
The Commissioner notes that on the aforementioned "Operation & Maintenance
and Essential Services Certification," the landlord listed the subject
building as having nineteen rooms, and on the aforementioned "Final Computed
Order of Eligibility," the subject building was listed as having fifteen
rooms. Furthermore, the Commissioner notes that the subject landlord in his
answer to the tenant's petition asserts that in applying for his 1986-1987
MBR increase he mistakenly listed the subject tenant's apartment and
Apartment 4-B as having two rooms, and in this proceeding the subject tenant
and landlord admit that both of the above-mentioned apartments contains only
one room each.
Accordingly, as there is a discrepancy in the record as to the number of
rooms in the subject building, the Commissioner finds that this proceeding
should be remanded to the Administrator for the purpose of determining the
number of rooms in the subject building.
The Commissioner further notes that there is a dispute as to the number of
floors in the subject building, as the tenant asserts that the subject
building contains four floors, and the subject landlord asserts that the
subject building contains five floors.
Accordingly, as there is a dispute as to the number of floors in the subject
building, the Commissioner finds that the Administrator should also
determine the number of floor in the subject building, and to determine
which floor the subject tenant resides on.
The Commissioner is of the opinion that the Administrator should recalculate
the building's 1986-1987 operating and maintenance expenses, and the
DOCKET NO.: BK 410149-RT
building's 1986-1987 MBR after the Administrator has determined the number
of rooms and floors in the subject building.
The Commissioner notes that in the order under review herein, there are two
different dates listed for the MBR effective date, May 1, 1986, and
September 1, 1987.
Accordingly, the Commissioner finds that as there were two conflicting
effective dates for the 1986-1987 MBR, the Administrator should determine
the effective date for the subject buildings's 1986-1987 MBR.
The Commissioner notes that there is a dispute as to when the order under
review herein, and the "Final Computed Order of Eligibility" were served on
Accordingly, the Commissioner finds that the Administrator should give the
parties to this proceeding an opportunity to submit evidence to substantiate
their allegations as to when the above-mentioned orders were served on the
Furthermore, after the Administrator determines the date when the subject
tenant was served with the aforementioned orders, the Commissioner finds
that the Administrator should, pursuant to the terms and conditions of the
"Final Computed Order of Eligibility," determine if the 1986-1987 MBR
increase is to be prospective from the date the tenant was served with the
aforementioned orders or is to take effect on the effective date of the
The Commissioner finds that the subject landlord was not required to serve
its application for an establishment of the 1986-1987 MBR on the subject
tenant as it was an ex parte proceeding between the landlord and the rent
As to the landlord's assertion that he is entitled to a monthly increase of
$10.00 as the subject apartment contains two air conditioners, the
Commissioner finds that the subject landlord may not apply for an increase
in the subject tenant's maximum rent in an answer to a petition for
administrative review, but must first file an application with the rent
THEREFORE, in accordance with the City Rent and Rehabilitation Law and the
Rent and Eviction Regulations, it is
DOCKET NO.: BK 410149-RT
ORDERED, that this proceeding be, and the same hereby is, remanded to the
Rent Administrator to recalculate the 1986-1987 MBR for the subject
building, and for the issuance of a new determination resolving all issues.
The previously issued order remains in full force and effect until a new
order is issued on remand.
Acting Deputy Commissioner