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STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
----------------------------------X S.J.R. NO.: 5681
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: EB 430317 RO
M & N RACOLIN MANAGEMENT CORPORATION,
DRO DOCKET NOS.: BK 422806 BR
CL 420033 BT
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 26, 1990 the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
February 2, 1990 by the Director of the Maximum Base Rent (MBR)
Unit, 92-31 Union Hall Street, Jamaica, New York concerning
housing accommodations known as 231 East 76th Street, New York,
New York, various accommodations.
Subsequent thereto, the petitioner-owner filed a petition in the
Supreme Court pursuant to Article 78 of the Civil Practice Law
and Rules requesting that the Court direct the Division to
expeditiously determine the petitioner's administrative appeal.
The proceeding was remanded to the Division of Housing and
Community Renewal (DHCR) by Court Order for further
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 administrative appeal.
On November 14, 1988, the Director issued an Order of
Eligibility establishing 1988-89 Maximum Base Rents for the
subject building. (Docket No. BK 422806 BR.)
Subsequent thereto, various tenants filed a challenge (first
level administrative appeal) to the 1988-89 Order of Eligibility
alleging that certain violations had not been repaired.
On February 2, 1990, the Director issued an order revoking said
Order of Eligibility based on a finding that the landlord had
failed to meet the violation certification requirements in order
to qualify for 1988-89 MBR increases (Docket No. CL 420033 BT.)
In this petition, the owner contends in substance that its
violation certification was proper, that its violation
certification contained a request for waiver of certain
violations which were tenant induced and other violations for
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which tenants refused to allow access for repairs, that all other
violations have been corrected, that it is entitled to credit for
violations which have been deemed corrected pursuant to the
Housing Maintenance Code and that the DHCR's reliance upon
unsubstantiated records of violations causes irreparable harm and
unfair prejudice in that owners have no opportunity to contest
the existence of violations prior to issuance of MBR orders.
In response, the tenant residing in apartment 7C asserts that she
always provided the owner access to make repairs. The tenant
further asserts that the owner has suppressed evidence of
plumbing violations in order to obtain MBR increases, that
although the plumbing violations do not appear in the Office of
Code Enforcement list of pending violations they appear in the
New York City Department of Buildings report of violation, they
are the subject of a pending court action and they are rent
impairing violations which have been outstanding since 1980, that
the owner's failure to make repairs is in violation of a court
order and therefore, MBR increases granted to the owner should be
In response the owner asserts that the allegations raised by the
tenant in apartment 7C relate to alleged individual service
problems in her apartment which do not relate to the owner's
entitlement to MBR increases for the 1988-89 cycle. The owner
further asserts that it was forced to commence the court action
in order to obtain access to the tenant's apartment to make
repairs and that once access was obtained the repairs were made.
The Commissioner is of the opinion that this petition should be
Procedures established under the Rent and Eviction Regulations
provide, among other things, that no rent increase may be
authorized under the Maximum Base Rent program commencing
January 1, 1988 unless the owner has removed all of the rent
impairing violations (as defined in the multiple dwelling law,
Section 302a) and at least 80% of all other (i.e., non-rent
impairing) violations on record as of January 1, 1987, or six
months prior to the filing of the 1988-89 Violation
Certification, whichever is later. If the owner cannot certify
before December 1, 1987 that the requisite number of violation
have been cleared, corrected or abated, the owner can certify
that it agrees to remove the requisite violations within 30 days
of the filing of such certification. In this proceeding, the
owner filed its Violation Certification on November 30, 1987 in
which it agreed and certified that it would clear, correct or
abate the requisite violations within 30 days.
The record shows that on January 1, 1987 there were two (2) rent
impairing violations and seventeen (17) non-rent impairing
violations pending against the subject building as follows:
Item No. Violation Description
87 REPAIR THE ROOF SO THAT IT WILL NOT LEAK SOUTH WEST AND
SOUTH EAST ROOMS AND KITCHEN APT. 8C.
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98 REMOVE ALL OBSTRUCTIONS AND REPAIR ALL DEFECTS IN
WASTELINE OF WASHBASIN 7TH STY 2ND FROM WEST AT FRONT
85 ABATE THE NUISANCE CONSISTING OF WOOD FENCES AND GATES
INSTALLED ROOF AT SOUTH AND NORTH.
86 REMOVE THE ACCUMULATION OF REFUSE AND/OR RUBBISH AND
MAINTAIN IN A CLEAN CONDITION THE EAST COURT AND REAR
88 ABATE THE NUISANCE CONSISTING OF TV ANTENNA ATTACHED TO
VENT PIPE ROOF EAST AT CENTER.
89 ABATE THE NUISANCE CONSISTING OF TREE AT DOOR TO
ELEVATOR SHAFT ROOF AT EAST DOOR.
90 ABATE THE NUISANCE CONSISTING OF GRAVEL PILE ON ROOF AT
91 FILE PLANS AND APPLICATION AND LEGALIZE THE FOLLOWING
ALTERATION OR RESTORE TO THE LEGAL CONDITION EXISTING
PRIOR TO THE MAKING OR SAID ALTERATION WOOD FENCE
ERECTED ON ROOF AT NORTHEAST AND NORTHWEST.
94 PROPERLY REPAIR WITH SIMILAR MATERIAL THE BROKEN OR
DEFECTIVE TILE WALL AT BATHTUB 7TH STY 2ND FROM WEST AT
FRONT APT. 7C.
95 ABATE THE NUISANCE CONSISTING OF EXPOSED ELECTRICAL
WIRES WALL OF FOYER 7 STY 2ND FROM WEST AT FRONT APT.
96 REPAIR THE BROKEN OR DEFECTIVE PLASTERED SURFACES AND
PAINT IN A UNIFORM COLOR WALL AND CEILING OF FOYER 7TH
STY 2ND FROM WEST AT FRONT APT. 7C.
97 REPAIR THE BROKEN OR DEFECTIVE PLASTERED SURFACES AND
PAINT IN A UNIFORM COLOR WALL AND CEILING OF FOYER 7TH
STY 2ND FROM WEST AT FRONT APT. 7C.
99 REPLACE WITH NEW THE MISSING WINDOW GLASS FRONT WEST
ROOM 7TH STY 2ND FROM WEST AT FRONT APT. 7C.
100 PAINT WITH LIGHT COLORED PAINT TO THE SATISFACTION OF
THIS DEPARTMENT CEILING PENTHOUSE B SOUTHWEST WALL.
101 PAINT WITH LIGHT COLORED PAINT TO THE SATISFACTION OF
THIS DEPARTMENT PENTHOUSE B SOUTHWEST ROOM SOUTH WALL.
102 REPAIR THE BROKEN OR DEFECTIVE PLASTERED SURFACES AND
PAINT IN A UNIFORM COLOR WALL PENTHOUSE STY SOUTHWEST
PENTHOUSE B AT TERRACE ENTRANCE.
103 ABATE THE NUISANCE CONSISTING OF EXPOSED ELECTRIC WIRE
PENTHOUSE B SOUTHEAST ROOM BELOW LIGHT SWITCH.
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104 REMOVE THE ACCUMULATION OF REFUSE AND/OR RUBBISH AND
MAINTAIN IN A CLEAN CONDITION THE CANS WOOD AND GARBAGE
ROOF AT SOUTHEAST.
105 ABATE THE NUISANCE CONSISTING OF DOUBLE CYLINDER KEY
OPERATED LOCK 1 STY STREET TO VESTIBULE.
In order to qualify for 1988-89 MBR increases, the owner was
required to correct the two (2) rent impairing violations and
fourteen (14) of the 17 non-rent impairing violations pending
against the building on January 1, 1987.
On August 16 and 23, 1989 inspectors from the Office of Code
Enforcement conducted physical inspections of the subject
premises and reported that six (6) of the non-rent impairing
violations (Item Nos. 86, 88, 89, 90, 104 and 105) had been
cleared, that the two (2) rent impairing violations (Item Nos.
87 and 98) and eleven (11) of the non-rent impairing violations
(Item Nos. 85, 91, 94, 95, 96. 97, 99, 100, 101, 102 and 103)
had not been corrected or no access could be obtained (in the
case of five of the eleven violations (94, 95, 96, 97 and 99) and
rent impairing violation 98.
The record shows that the owner submitted, along with its
Violation Certification, a request for the waiver of certain
violations. The owner was subsequently requested by the Division
to submit documentary evidence in support of its waiver request.
Regarding Item Nos. 85 and 91, the owner asserted that these
violations, involving wood fences installed on the roof, are
tenant induced, that the encumbrances were installed without the
owner's knowledge or permission and that it asked the tenants
involved to remove same but they refused. The owner did not
submit any documentary evidence in support of these assertions.
Accordingly, the Commissioner finds that the evidence of record
is not sufficient to warrant the waiver of Item Nos. 85 and 91.
Regarding Item Nos. 94, 95, 96, 97, 98 and 99, all involving
violations in Apartment 7C, the owner asserted that the tenant
would not allow it access to the apartment in order to make
repairs. The record shows that the owner commenced a Civil Court
proceeding in November, 1987 for the purpose of obtaining access
to apartment 7C to make repairs. However, the record further
shows that during the course of said proceeding, the owner and
tenant entered into a court ordered stipulation on April 5, 1988
in which the owner agreed to make repairs and the tenant agreed
to provide access. In said stipulation the parties state:
"It is further agreed that by entering into this
stipulation neither side is admitting to any fault with
regard to its content, neither may this stipulation be
used in any manner in or concerning the underlying
case, nor is any inference to be drawn by the execution
of this stipulation."
Subsequently during the course of said proceeding, in an order
issued by the Court on April 25, 1989 on the issue of the
entitlement to legal fees, the Court, in describing the history
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of the proceeding, stated the following in regard to the access
"Because landlord and tenant could not always agree and
because workmen were not always available and access
was not always possible, the terms of the stipulation
took many more months to complete than was set forth in
the paragraph of the stipulation which required
completion within sixty days. The Court finds neither
party responsible for any delay."
In view of the fact that no finding of fault was made by the
Court regarding the failure to make repairs or provide access for
repairs and the parties stipulated that neither was admitting
fault in the matter, the Commissioner finds the owner's
contention raised on appeal that Item Nos. 94, 95, 96, 97, 98 and
99 should be waived because the tenant failed to provide access
to be specious and that such waiver is not warranted.
However, the record shows that the owner submitted to the DHCR
copies of invoices for work performed in Apartment 7C in June and
July 1988. Further, the tenant submitted a copy of a letter
dated August 20, 1989 written to the Office of Code Enforcement
in which she indicates that all items except the basin
obstruction (Item No. 98) had been removed. Based thereon, the
Commissioner finds that Item Nos. 94, 95, 96, 97 and 99 have now
been cleared for MBR purposes but were not cleared on a timely
basis for the owner to have been eligible for 1988-89 MBR
The owner asserts on appeal that the above mentioned court order
of April 25, 1989 indicates that all repairs in Apartment 7C were
made. Although the owner submitted copies of invoices
indicating, among other things, that work was performed to clear
the rent impairing washbasin obstruction (Item 98) in June, 1988
the August 16 and 23, 1989 inspection report indicated that the
inspectors were unable obtain access to Apartment 7C. Further,
the tenant contends in her answer to the petition that the basin
obstruction still exists. Based thereon, the Commissioner finds
that the evidence of record is not sufficient to establish that
Item No. 98 has been cleared.
The owner contends on appeal that all other violations (Item Nos.
87, 100, 101, 102 and 103) have been corrected.
Regarding Item No. 87, a rent impairing violation concerning a
roof leak in Apartment 8C, the owner submitted, both below and on
appeal, a copy of an invoice dated March 23, 1987 for work
performed on the roof above Apartment 8C. The inspections
conducted on August 16 and 23, 1989 by the Office of Code
Enforcement indicated that this violation had not been cleared.
However, the owner submitted on appeal a letter dated February
13, 1990 from the tenant of Apartment 8C in which the tenant
"In 1987 a leak occurred in my apartment from the
terrace above me. The landlord fixed the leak and
repaired my apartment. Subsequently, a new leak
occurred and the landlord repaired that leak as well.
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My apartment as of this date does not require any
repairs or maintenance."
Based thereon, the Commissioner finds that the owner had cleared
Item No. 87 for MBR purposes.
Regarding Item Nos. 100, 101, 102, concerning the painting and
plastering of Penthouse B, the record shows that the owner
submitted to the DHCR copies of invoices for plastering work
performed in Penthouse B in September, 1989 and a copy of a
letter dated July 15, 1990 from the tenant who states, among
other things, that "(t)he apartment (Penthouse B) was plastered
and painted on the inside in September, 1989. "Based thereon,
the Commissioner finds that Item Nos. 100, 101, and 102 have been
cleared for MBR purposes but were not cleared on a timely basis
for the owner to have been eligible for 1988-89 MBR increases.
Regarding Item No. 103, which concerns exposed electrical wire in
Penthouse B, there is no evidence in the record to indicate that
this violation has been cleared. The Commissioner notes that the
above mentioned letter from the tenant of said apartment makes no
reference to the removal of exposed electrical wire in the
Regarding the owner's contention that it is entitled to credit
for violations which have been deemed corrected pursuant to the
Housing Maintenance Code, the record shows that on October 10,
1988 the owner was requested to submit evidence of such from the
Office of Code Enforcement. The owner was specifically advised
that acceptable evidence consisted of a report of search and/or a
violation status report (Form 106H) and/or a violations deemed
corrected report (Form 106D) and/or an inspection report (Form
1036). The owner did not submit any of the above evidence.
Accordingly, the owner is not entitled to credit for violations
which it asserts have been deemed corrected.
The record indicates that one (1) rent impairing violation (Item
No. 87) and six (6) non-rent impairing violations (Item Nos. 86,
88, 89, 90, 104 and 105) on record against the subject building
on January 1, 1987 have been cleared on a timely basis. From the
record, it cannot be found that all rent impairing violations and
80% of all non-rent impairing violations pending as of January 1,
1987 were cleared, corrected or abated. In addition, the owner
has not submitted sufficient evidence to establish that any
violation should have been waived.
Based thereon, the Commissioner finds that the owner is not
entitled to 1988-89 Maximum Base Rent increases.
Regarding the owner's contention that it has no opportunity to
contest the existence of violations prior to issuance of the MBR
order, the Commissioner notes that the report of the Office of
Code Enforcement inspectors is of greater probative value than
the bare allegations of the owner as to the existence of
violations. The Commissioner further notes that under MBR
procedures the owner is provided the opportunity to dispute the
existence of violations listed in the Office of Code Enforcement
inspection report and to submit evidence in substantiation
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The Commissioner notes that the tenant occupying Apartment 7C
submitted an answer to the owner's petition which extensively
discusses a plumbing violation listed in February, 1988 by the
Department of Buildings as follows:
"Plumbing fixture vent altered without permit or
inspection by this Department.
"Remedy: 1) engage a licit registered
plumber to file proper
2) Plumber to make all
3) Plumber to arrange for
inspection by this
The tenant asserts that although this plumbing violation appears
only as a Department of Buildings violation and not in the Office
of Code Enforcement list of pending violations, it is a rent
impairing violation which has been outstanding since 1980 which
remains unresolved and which is related to the washbasin
obstruction and based thereon, MBR increases granted to the
owner must be revoked. The tenant indicates that the plumbing
condition has been made part of a pending Supreme Court action
which she has filed against the owner.
While the Commissioner acknowledges the fact that the above
mentioned plumbing condition (Altered plumbing fixture vent) has
been listed as a violation by the Department of Buildings, as the
tenant points out, this violation does not appear among those
listed as pending against the subject building on January 1,
1987. As discussed above, established procedures provide that
1988-89 MBR increase may not be authorized unless the owner has
cleared the requisite number of violations on record with the
Office of Code Enforcement on January 1, 1987. Accordingly, the
plumbing violation is not under consideration in the
determination of the owner's eligibility for 1988-89 MBR
increases. The Commissioner makes no finding as to whether, as
the tenant asserts, the washbasin obstruction is part of the
plumbing violation. This order is issued without prejudice to
the tenant's right to file a decrease in rent based on a decrease
in service, if the facts warrant.
THEREFORE, in accordance with the Rent and Eviction Regulations,
ORDERED, that this petition be, and the same hereby is, denied,
and the Director's order be, and the same hereby is, affirmed.
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