Docket No. DE410443RT(Reopening)
                                    STATE OF NEW YORK 
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                               92-31 UNION HALL STREET
                              JAMAICA, NEW YORK  11433

          APPEAL OF                               DOCKET NO. DE410443RT  
          TOM ETTINGER,                           DISTRICT RENT             
                                                  ADMINISTRATOR'S DOCKET
                                                  NO. AF520114F


              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 

              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 

              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 

              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 

              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 

              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, 


                                             Joseph A. D'Agosta
                                             Deputy Commissioner


TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name