DOCKET NUMBER: DD 130236-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
------------------------------------X SJR 5192
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: DD 130236-RO
:
DRO DOCKET NO.: CL 130235-OM
MELOHN PROPERTIES,
PETITIONER :
------------------------------------X
ORDER AND OPINION REMANDING PETITION FOR ADMINISTRATIVE REVIEW
On April 25, 1989 the above named petitioner-owner/trustee filed a
Petition for Administrative Review against an order issued on March 22,
1980 by the District Rent Administrator, Gertz Plaza concerning housing
accommodations known as 83-43 118th Street, Queens, New York, various
apartments, wherein the Administrator denied the application for a major
capital improvement rent increase adjustment and terminated the
proceeding.
This proceeding stems from an application filed with the Division in
December 1988 by the petitioner herein, as trustee, predicated on the
following items: boiler/burner,concrete,intercom,plumbing,roof and
windows. Submitted with the application were contractors'
certifications, contracts,cancelled checks and various governmental
approvals and sign-offs for the boiler/burner and plumbing installations.
The order of the Administrator appealed herein denied the application and
terminated the proceeding (without service of the application on the
tenants) on grounds that the application was incomplete since the
application failed to indicate on the Contractor/Vendor form (RA-79
Supplement I) whether there exists a relationship, financial or otherwise,
between the owner and the contractors who performed the work with respect
to three of six installations; and that the age of the boiler/burner which
was replaced was not specified therein.
The Administrator's order further noted that where a contract applies to
More than one building a separate rider should be submitted detailing the
size of each building and the cost and extent of the work performed as to
each; that half-rooms should be excluded from the application and the age
of the windows which had been replaced should also be provided.
The Commissioner notes that a companion application (CL 130236-OM) which
pertains to an adjacent building is the subject of a separate petition to
administrative review to be determined under Docket No. DD 130238-RO.
In this petition for administrative review the owner contends, in
substance, that it was error for the Administrator to have denied the
entire application based on the omission of certain information from the
initial application; that said order is contrary to long standing
processing procedure which is to afford an owner an opportunity to furnish
DOCKET NUMBER: DD 130236-RO
additional information and evidence; that the requirement for a special
rider where work covers more than one building is not to be found in the
Rent Stabilization Code but the owner is willing to qualify its
application if afforded an opportunity to do so; and that the
installations performed qualify as major capital improvements.
Various tenants responded to the petition urging the affirmation of the
Administrator's order.
After a careful consideration of the entire record, the Commissioner is of
the opinion that this petition should be remanded to the district Rent
Administrator for further processing in accordance herewith.
Inherent in the Administrator's authority to pass on an application for a
rent increase adjustment is the right to deny or reject an incomplete
application. The Administrator also has the authority to request the
submission of additional information and evidence deemed relevant to such
application.
At the time the instant application was filed it was the policy of the
Administrator to reject an incomplete application. Currently it is the
policy of the Administrator to reject such application without prejudice
to refiling (as in the matter cited by the owner on appeal). In view of
the substantial documentation submitted by the owner and since it is the
Administrative rule to decide pending cases under the regulations and
procedures therein effect (unless undue hardship may flow therefrom) the
Commissioner is of the opinion that this proceeding should be remanded to
the Rent Administrator for such further processing as may be deemed
warranted; with full consideration given to such allegations and
contentions as may be raised by the parties after service of the
application on the tenants.
As to the effective date of any increase to which the owner may ultimately
be found entitled, Section 2522.2 of the Rent Stabilization Code provides
that an increase shall be effective the first rent payment date 30 days
after the application is filed, unless otherwise set forth in the order.
Inasmuch as the owner has failed to offer any explanation for its failure
to respond to pertinent inquiries posed on the Contractor/vendor form,
especially as it pertains to the relationship question and the age of the
removed heating system nor has it submitted this information on appeal,
the effective date of any rent increase as to stabilized apartments shall
be no earlier than July 1, 1989, the first rent payment date 60 days after
filing of this petition for administrative review, provided the owner
submits to the administrator in a timely fashion such additional
information and/or documentation as may be requested upon the remand.
THEREFORE, in accordance with the provision of the Rent Stabilization Code
and the Rent and Eviction Regulations for New York City, it is
ORDERED, that this petition for administrative review be, and the same
hereby is granted to the extent of remanding this proceeding to the Rent
Administrator for further processing in accordance with this order and
opinion. The order and determination of the administrator remains in full
force and effect until a new order is issued upon the remand.
DOCKET NUMBER: DD 130236-RO
ISSUED:
ELLIOT SANDER
Deputy Commissioner
|
