Docket No. BL410177RT
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.: BL410177RT
DISTRICT RENT
Various Tenants, by Jessie Smith ADMINISTRATOR'S DOCKET
as Tenants' Representative NO.: 7MBC00067M(7MI05684M)
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 known as 75-77 Park Terrace East, Various
Apartments, New York, New York.
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 in this proceeding is whether the Administrator's
order was correct.
The Order being appealed found that the owner of the subject
premises was eligible for a 1986/87 Maximum Base Rent (MBR)
increase.
On appeal, the tenant maintains that she was served with
Notification of both the 1984/85 and 1986/87 MBR increases in
1986, thus compelling the tenant to pay two 7.5% rent increases in
one year, in violation of Section 2201.6(a)(1) of the Rent and
Eviction Regulations. The tenant also maintains that she was
denied due process by the Administrator's failure to audit the
owner's Operating and Maintenance Expense (O & M) certification.
The Commissioner is of the opinion that this petition should be
Docket No. BL410177RT
denied.
An examination of the record reveals that, on August 21, 1985
the Administrator issued an order granting the owner conditional
eligibility to raise MBRs at the subject premises for the 1984/85
cycle. The tenant testifies on appeal that she wasn't served with
this order until June, 1986. The tenant further testifies on
appeal that later in 1986 she was served with the owner's receipt
of eligibility to raise 1986/87 MBRs. As a result, according to
the tenant's testimony she (and the other rent-controlled tenants
at the subject premises) were forced to pay two 7.5% rent increases
during 1986, a clear violation of the Rent and Eviction
Regulations.
The Commissioner notes that the tenant filed a challenge to the
1984/85 MBR order during July 1986 (approximately one month after
she was served with the order). The tenant based her challenge on
various matters, but did not challenge the order on the basis of
the alleged late service. Rather, the tenant first raised the
matter in her challenge to the owner's eligibility for 1986/87
MBRs, such challenge filed by the tenant during September, 1986.
The Commissioner is of the opinion that the proximate cause of
the tenant's being served with two orders of eligibility for two
MBR cycles during 1986 is the allegedly late service of the 1984/85
order of eligibility. As noted above, the tenant did not raise the
issue on her challenge to that order. The Commissioner is
therefore of the opinion that the tenant is using this PAR
proceeding to collaterally attack the 1984/85 MBR, and as such this
attack will not be considered by the Administrator on appeal.
As for the tenant's argument on appeal that the Administrator
was in error for not ordering an O & M audit: An audit of the
owner's O & M certification is not normally part of the MBR
process, but is only ordered in extraordinary circumstances. The
Commissioner notes that the tenant refers to another order in which
the Administrator denied the owner eligibility for failing to
provide additional information necessary for an O & M audit. An
examination of that order (#7MBC00026M) reveals that the
Administrator found:
"Owner failed to comply with request... to submit information
necessary for performing audit.."
In the proceeding under review herein the Administrator did not
request the owner to provide additional information concerning the
O & M certification. Additionally, the two orders concern two
different premises, which are owned by different owners. The
Commissioner is also of the opinion that the tenant has not
submitted sufficient evidence on appeal to prove her allegation of
the need for an O & M audit in the instant case.
Docket No. BL410177RT
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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