Docket No. DE410443RT(Reopening)
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. DE410443RT
(Reopening)
TOM ETTINGER, DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO. AF520114F
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 22, 1989, the above-named tenant filed a petition for
administrative review of an order issued on April 18, 1989 by a
Rent Administrator concerning the housing accommodation known as
Apartment 11G, 420 Riverside Drive, New York, New York.
On October 6, 1993 the Commissioner issued an order, under the
above-captioned docket number, which denied the tenant's petition
for administrative review.
In a letter to the Division of Housing and Community Renewal
(D.H.C.R.), dated October 12, 1993, the subject tenant requested
reconsideration of the order and opinion issued by the Commissioner
on October 6, 1993, based upon an irregularity in a vital matter.
The tenant pointed out that his supplemental submissions, which
were faxed to the D.H.C.R. on July 5, 1993, were not included in
the record, in this proceeding, when the Commissioner issued the
order issued on October 6, 1993 under the above-captioned docket
number.
On November 9, 1993, the Commissioner issued an order granting
the tenant's request for reconsideration and reopening of
Administrative Review Docket No. DE410443RT.
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.
Docket No. DE410443RT(Reopening)
On April 15, 1986, the subject landlord filed with the rent
agency a "Landlord's Report, Certification and Notice of Fuel
Adjustment Eligibility," under Docket No. AD426144FC, in order to
qualify for an increase in the fuel cost adjustment effective
January 1, 1986.
On June 16, 1986, the subject tenant filed with the rent agency
a challenge to the above-mentioned "Landlord's Report and
Certification of Fuel Cost Adjustment and Eligibility" for 1986.
On April 18, 1989, the Administrator issued the order under
review herein which denied the tenant's challenge. Furthermore,
the Administrator stated that: "Evidence in file indicates that the
owner has met the filing requirements of Section 2202.13 for the
year 1986."
In his petition, the subject tenant states that:
Fuel cost adjustment is a benefit granted to landlords
only upon the condition that their premises are properly
maintained. As the record shows, such is not the case in
this building. Accordingly, the Administrator erred in
granting the landlords this relief, as they are not
entitled to it.
Deponent has not had time to prepare the documentation
for this submission and timely files this pro-forma PAR
in order not to lose the right for PAR. Deponent will
file these supplementary papers in the near future.
In its response the subject landlord asserts, among other
things, that the subject landlord is maintaining all essential
services in the subject building, and that the tenant's petition
should be denied as it does not contain "any supporting
documentation."
The subject tenant submitted a letter, dated June 2, 1993, to
the rent agency requesting an additional thirty days to submit
supplementary papers.
On June 11, 1993, the rent agency mailed a letter to the
subject tenant informing him that "no action will be taken on this
matter before July 6, 1993."
In his supplementary submissions, which were faxed to the
D.H.C.R. on July 5, 1993, the subject tenant alleged, among other
things, that the subject building has numerous rent impairing
violations; that the subject landlord was not entitled to collect
an increase in the fuel cost adjustment as there has been a
reduction in the subject building's essential services; that the
tenant stated: "As amply demonstrated in other submissions to
Administrator, during the MBR cycle to which this fuel increase is
Docket No. DE410443RT(Reopening)
an adjunct there were not removed the required percentage of
violations, and there was a hazardous rent-impairing violation not
complied with," and that the tenant further stated that: "for all
of the above, tenants respectfully request that the Administrator
grant their PAR and deny the landlords the 1986 cumulative fuel
increases."
In a letter, dated November, 19, 1993, the subject tenant
requested that the rent agency consolidate this proceeding with two
separate proceedings currently pending before the rent agency which
pertain to whether the subject landlord is eligible for maximum
base rent (M.B.R) increases and labor cost adjustments to the
maximum rent for the 1986-1987 period and the 1988-1989 period,
respectively. Furthermore, in the above-mentioned letter the
tenant asserts that this proceeding and the two aforementioned
pending proceedings involve "the legally impermissible issuance of
retroactive orders of rent increase," and that, as the tenant
points out, there is still a pending proceeding with the rent
agency pertaining to an alleged diminution of building-wide
services, filed under Docket No. CI410009RT.
After carefully consideration, the Commissioner finds that the
tenant's petition should be denied.
The Commissioner is of the opinion that this proceeding, under
Docket No. DE410443RT, should not be consolidated with the two
aforementioned proceedings pending before the rent agency. Section
2208.1(c) of the City Rent and Eviction Regulations states: "The
Administrator may, in his discretion, consolidate two or more PAR's
which have at least one ground in common." The Commissioner finds
that there is no common ground in the issues raised in this
proceeding and in the two aforementioned proceedings pertaining to
M.B.R. increases and labor cost adjustments. The issue that is
raised in this proceeding, under Docket No. DE410443RT, is whether
the Administrator was warranted in denying the tenant's challenge
to the landlord's report for fuel cost adjustment eligibility for
1986. Section 2202.13(i) of the City Rent and Eviction Regulations
provides that increases in fuel cost adjustments "shall not be
incorporated into the maximum base rent or the maximum collectible
rent for purposes of calculating percentage adjustments to such
rents." Furthermore, the Commissioner points out that the
eligibility requirements in granting fuel cost adjustments and
M.B.R. increases are not similar. Even if a common ground could be
found in the aforementioned proceedings, it would still be a proper
exercise of the Commissioner's discretion in denying the tenant's
request for consolidation, because of the possibility of confusion,
among the parties, in understanding the final determination
rendered by the Commissioner, due to the complexity of the issues
that are raised in the aforementioned proceedings that are before
the Commissioner.
Pursuant to Section 2202.13(h) of the Rent and Eviction
Docket No. DE410443RT(Reopening)
Regulations and Policy Statement 91-3, the Commissioner notes that
a landlord is barred from collecting increases for fuel cost
adjustments when there is a rent reduction order in effect for
failing to maintain an essential service.
The record reflects that on January 1, 1986, the effective date
of the increase in fuel cost adjustments in this proceeding, there
was no rent reduction order in effect for failing to maintain an
essential service in the subject building or apartment.
The Commissioner finds that the subject tenant has not
substantiated his allegation that the landlord is not eligible for
a fuel cost adjustment for 1986.
As to the tenant's assertion that the landlord is not eligible
for an increase in the fuel cost adjustment as the landlord has not
removed all rent impairing violations on record with the New York
City Department of Housing Preservation and Development (H.P.D.)-
Division of Code Enforcement, the Commissioner finds that that
assertion is without merit. The removal of rent impairing
violations on record with H.P.D's-Division of Code Enforcement is
one of the pre-requisites of the rent agency in granting the
landlord M.B.R. increases, pursuant to Section 2202.3(h) of the
City Rent and Eviction Regulations; however, the aforementioned
violation removal requirements are not a pre-requisite of the rent
agency in granting the landlord an increase in the fuel cost
adjustment.
The record reflects that the currently pending petition for
administrative review, under the aforementioned Docket No.
CI410009RT, is an administrative appeal of an Administrator's order
issued on August 1, 1988 under Docket No. AE530074B, which denied
the subject tenant's complaint which requested a rent reduction due
to an alleged diminution of services. In the above-mentioned
complaint, dated May 12, 1986, the subject tenant alleged that the
landlord is not providing laundry facilities, and that the landlord
is not providing access to the building's roof.
As the complaint filed under Docket No. AE530074B is dated May
12, 1986, which is after the effective date of the landlord's
increase in the fuel cost adjustment for 1986, the Commissioner is
of the opinion that even if the Commissioner grants the tenant's
pending administrative appeal, under Docket No. CI410009RT, it
would have no effect on the landlord's eligibility for a fuel cost
adjustment for 1986. The Commissioner is further of the opinion
that the service reductions alleged by the subject tenant, in his
complaint filed under Docket No. AE530074B, were not essential
services as provided by Section 2202.13(h) of the City Rent and
Eviction Regulations and Policy Statement 91-3.
As to the subject tenant's assertion that it is impermissible
for the rent agency to issue a retroactive order for an increase in
Docket No. DE410443RT(Reopening)
the fuel cost adjustment, the Commissioner finds that that
assertion is without merit. The Commissioner points out that the
Administrator's order under review herein determined that the
subject landlord has met the filing requirements of Section 2202.13
of the City Rent and Eviction Regulations to qualify for a fuel
cost adjustment in 1986. Section 2202.13(e) of the above-mentioned
regulations state that:
If the report is served and filed within 60 days of the
date of promulgation of the findings of fuel price
increase and standards of consumption by the Division of
Housing and Community Renewal, the rent adjustment shall
be retroactive to and shall become effective as of
January first of the calendar year in which the report is
filed.
Accordingly, the Commissioner finds that the tenant's petition
does not raise any issues which would warrant the revocation of the
Administrator's order under review herein.
The Commissioner points out that this order and opinion is
issued without prejudice in the determination of any of the
currently pending proceedings before the rent agency pertaining to
the subject apartment or building.
THEREFORE, in accordance with the City Rent and Rehabilitation
Law and the Rent and Eviction Regulations, it is
ORDERED, that this petition be, and the same hereby is, denied,
and that the Rent Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
Joseph A. D'Agosta
Deputy Commissioner
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