DOCKET NOS.: ED 420061-RT
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE APPEAL
APPEAL OF DOCKET NOS. ED 420061-RT
: ED 420062-RO
RICHARD and JEFFREY SILVERMAN DRO DOCKET NOS. DG 420254-BO
and MARIA MALFITANO, : CB 420640-BR
ORDER AND OPINION DENYING CONSOLIDATED PETITION FOR ADMINISTRATIVE REVIEW
On March 27, 1990 the above-named petitioner-individual tenant Jeffrey
Silverman filed a Petition for Administrative Review (Docket No. ED
420061-RT), against an order issued on March 9, 1990 by the Administrator
of the MBR Unit at Gertz Plaza, Jamaica, NY concerning the housing
accommodation known as 251 West 92nd Street, New York, NY Apt. 8C.
On April 10, 1990 the above-named petitioner-authorized tenant
representative, Maria Malfitano filed a Petition for Administrative Review
(ED 420062-RO) against the same order issued on March 9, 1990, by the
Administrator of the MBR Unit at Gertz Plaza, Jamaica, NY concerning 251
West 92nd Street, New York, NY, building-wide.
On July 11, 1991 the owner filed a notice in Supreme Court-Queens County,
in the nature of an application that a writ of mandamus requesting that
the respective petition for review be decided. The court remanded the
matter to the respondent agency DHCR with the direction to find and/or
reconstruct the area file and issue the subject order.
The Commissioner has been able to locate and assemble nearly all of the
material evidence in connection with this matter. And he has carefully
considered that portion of said evidence as is relevant to the issues
raised in the Administrative Appeals as well as the contents of the papers
in the Article 78 proceeding. The Commissioner is of the opinion that
this record is adequate for a proper determination of the issues in the
proceedings. Having raised similar issues and dealing with the identical
order, pursuant to Section 2208.1(c) of the Rent and Eviction Regulations,
the two tenant Petitions for Administrative Review are consolidated
The issue in the consolidated tenants' appeal is whether the owner
complied with the requirements for obtaining the 1988 and 1989 MBR;
particularly that all required owner provided notices were served on the
The tenant's consolidated PARs also raised the issue of whether the MBR
Unit Administrator was correct in making the March 9, 1990 MBR order
retroactive to January 1, 1988.
DOCKET NOS.: ED 420061-RT
The owner in his answers to the two Petitions for Administrative Review
(now consolidated) pointed out that the MBR Unit issued the order on March
9, 1990 granting the 1988-89 MBR increase on the basis that the landlord
met the prescribed certification requirements and maintenance and
essential service requirements. Specifically by said order the DHCR
established that the building is 100% free of rent impairing violations
pursuant to the New York City Rent and Eviction Regulations, Section
The tenants contend that they were never served with the June 22, 1989
order originally denying said 1988-89 MBR increase.
The owner argues that the 1989 order denying the increase (which was
reversed in 1990, did not have to be served on the tenants by the owner as
it did not change their rent (This was the usual practice as to such
The owner has established he did serve the tenants with the subject 1990
order granting the MBR.
The tenants in a supplemental PAR dated June 13, 1991 by their attorney
Leonard Lerner contend that a rent impairing violation dating back to
1983 and more than 20% of the non-rent impairing violations still were of
record as of HPD inspections of September 12, 1988 and October 29, 1990.
The record indicates that the Director of the MBR Unit prior to issuing
the 1988-89 MBR reviewed existing HPP printouts of October 6, 1989 as well
as photo evidence of violation removal that the owner submitted as part of
his challenge to the original 1989 order denying the MBR. The rent
examiner acted within the scope of the existing agency guidelines in
making the determination reversing the prior denial of 1988-89 MBR.
The March 9, 1990 MBR order was retroactive in effect because it was
granting to the owner, as a result of the owner's successful challenge,
relief that should have been granted by the challenged order. It granted
such relief as of the date the challenged order should have granted that
On the basis of the entire evidence of record, it is found that the
Administrator's MBR order was warranted.
THEREFORE, in accordance with the provisions of the Rent and Eviction
Regulations for New York City, it is
ORDERED, that this petition be, and the same hereby is, denied, and that
the Administrator's order be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner