DOCKET NOS.:  EE520193RT
              EK420358RT
                             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
     IN THE MATTER OF THE ADMINISTRATIVE   :   
     APPEALS OF                                ADMINISTRATIVE REVIEW
                                           :   DOCKET NOS. EE520193RT and
           THOMAS P. ETTINGER,                             EK420358RT
                                           :   DISTRICT RENT ADMINISTRATOR'S
                            PETITIONER         DOCKET NOS. CH520051AC and      
     --------------------------------------X               CH420051BT


          ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW

     On May 22, 1990, the above-named tenant filed a petition for 
     administrative review, under Docket No. EE520193RT, of an order issued on 
     April 19, 1990, under Docket No. CH520051AC, by the Rent Administrator, 
     concerning various housing accommodations known as 420 Riverside Drive, 
     New York, New York.  On November 28, 1990, the above-named tenant filed a 
     petition for administrative review, under Docket No. EK420358RT, of an 
     order issued on October 26, 1990, under Docket No. CH4200051BT, concerning 
     the above-mentioned premises.

     Since the petitions involve common questions of law and fact the 
     Commissioner deems it appropriate to consolidate the proceedings for 
     disposition herein.

     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 petitions for administrative review.

     On August 9, 1988 the subject tenant filed a challenge of the 
     Administrator's order granting the landlord maximum base rent (MBR) 
     increases for the 1986 - 1987 period effective as of January 1, 1986.

     On October 26, 1990 the Administrator issued the order under review 
     herein, under Docket No. CH420051BT, which determined that the subject 
     landlord had met the prescribed violation certification requirements for 
     the establishment of the 1986 - 1987 MBR, and affirmed the Administrator's 
     order of eligibility granting the landlord MBR increases for the 1986-1987 
     period.

     In his petition, filed under Docket No. EK420358RT, the tenant asserts, 
     among other things, that building-wide services are not being maintained, 
     and that the subject landlord had not removed the requisite number of 
     violations to be eligible for an MBR increase for the 1986-1987 period.

     After careful consideration, the Commissioner is of the opinion that the 
     tenant's petition filed under Docket No. EK420358RT should be denied.

     The record reflects that the subject landlord had in fact removed the 
     requisite number of violations against the subject building, and had met 







          DOCKET NOS.:  EE520193RT
              EK420358RT

     the other requirements specified in the applicable provisions of the Rent 
     and Eviction Regulations to be eligible for an MBR increase for the 1986 - 
      1987 period, effective on January 1, 1986.

     The Commissioner notes that this order is issued without prejudice to the 
     rights of the tenants to file with the rent agency a complaint due to a 
     reduction in services if the facts so warrant.

     Accordingly, the Commissioner finds that the Administrator's order issued 
     under Docket No. CH420051BT should not be disturbed.

     The subject landlord filed an application, dated August 26, 1988, for a 
     Labor Cost Adjustment (L.C.A) to the maximum collectible rents (MCR) of 
     the subject apartments for the 1986-1987 biennial cycle.  The landlord's 
     application stated that the subject building contains 101 apartments and 
     that there are 9 union employees employed at the subject building.

     In his response to the landlord's application, the subject tenant alleged, 
     among other things, that the landlord's application does not state the 
     correct number of apartments in the subject building, and that there are 
     only eight employees on the building's payroll, not nine as stated in the 
     landlord's application.

     On February 21, 1990 the Administrator issued a notice to the subject 
     landlord directing it to submit to the rent agency copies of the L.C.A. 
     application filed before the present application, and certified copies of 
     the payroll register showing the names of all employees and their wages.  
     The notice also requested that the landlord explain why the rent agency's 
     records show that the subject building contains 102 apartments, but the 
     landlord's L.C.A. application in this proceeding lists the subject 
     building as containing 101 apartments.  

     On March 12, 1990 the subject landlord filed with the rent agency a 
     revised L.C.A. application for increases in the subject apartments' 
     maximum rents for the 1986-1987 biennial cycle.  The landlord in its 
     revised L.C.A. application listed the subject building as containing 102 
     apartments, and stated that there are 8 employees employed at the subject 
     building.

     The subject landlord also submitted to the Administrator a copy of its 
     L.C.A application for increases in the subject apartments' maximum rents 
     for the 1984-1985 biennial cycle.  In its 1984-1985 L.C.A. application the 
     subject landlord listed the subject building as containing 102 apartments.  
     The landlord also submitted an Administrator's order issued on December 
     30, 1985, under Docket No. UC000012AC, granting the subject landlord's 
     1984-1985 L.C.A. application effective December 30, 1985.

     The subject landlord also submitted to the Administrator a copy of the 
     subject building's payroll records for the week ending on August 26, 1988.

     On March 15, 1990 the Administrator mailed a notice to the subject 
     landlord directing it to submit a copy of labor agreements signed between 
     the subject landlord and the building employees.


     On March 27, 1990 the subject landlord submitted to the rent agency a copy 
     of a labor contract entitled "1988 Apartment House Agreement" entered into 


          DOCKET NOS.:  EE520193RT
              EK420358RT

     between the subject landlord and Local 32B-32J, Service Employees 
     International Union (the labor Union representing the employees of the 
     subject building).  The labor contract contained provisions pertaining to 
     among other things, the building employees' salaries, vacation and sick 
     time, holidays, health insurance, and pension fund.

     In the order under review herein issued on April 19, 1990 under Docket No. 
     CH520051AC, the Administrator increased the maximum rents of the subject 
     apartments to reflect uncompensated labor costs incurred by the subject 
     landlord, pursuant to Section 2202.11 of the City Rent and Eviction 
     Regulations.

     In his petition the subject tenant asserts, among other things, that the 
     landlord is not entitled to an L.C.A. increase in this proceeding for the 
     following reasons:


               1)   There has been a reduction of services in 
                    the subject building;
               2)   That rent-impairing violations were still 
                    pending against the subject building during 
                    the applicable period;
               3)   That the rent agency has not issued a 
                    determination of the tenant's 
                    administrative appeal of the 
                    Administrator's order granting the landlord 
                    MBR increases for the 1986-1987 period;
               4)   That until the rent agency issues a 
                    determination of the above-mentioned 
                    tenant's appeal, "the application for labor 
                    cost adjustment to the MCR's should not be 
                    processed as they depend upon the 
                    formulation of the MBR's, which are in 
                    dispute"; 
               5)   That the landlord's L.C.A. application 
                    incorrectly listed that the subject 
                    building contains 101 apartments, but the 
                    building's current Certificate of Occupancy 
                    lists the subject building as containing 
                    103 apartments;
               6)   That the L.C.A. application incorrectly 
                    lists nine employees employed in the 
                    subject building, and that the actual 
                    number of employees employed in the 
                    building is eight;
               7)   That the subject tenant is not aware of any 
                    revised L.C.A. application filed by the 
                    subject landlord in this proceeding;








          DOCKET NOS.:  EE520193RT
              EK420358RT



               8)   That the subject landlord is not a 
                    corporation, but a partnership, and the 
                    L.C.A application was sign by a Vice- 
                    President of the aforementioned 
                    partnership, and
               9)   As the subject landlord is a partnership, 
                    and the L.C.A. application was signed by a 
                    Vice-President of the Partnership, the 
                    subject tenant asserts that the filing of 
                    the L.C.A. application was improper, as 
                    partnerships do not have Vice-Presidents, 
                    and as such the aforementioned application 
                    was not signed by a "responsible party."


     To his petition the subject tenant attaches copies of "the Christmas 
     gratuity solicitation lists," for building employees, which were handed 
     out in the subject building for the years, 1986, 1987, 1988 and 1989.  The 
     above-mentioned solicitation lists show that the subject building has one 
     superintendent, one handyman, four doormen, one full-time porter, and one 
     part-time porter, for a total of eight employees.

     In its answer to the tenant's petition the landlord asserts, among other 
     things, that the signatory of the landlord's L.C.A. application in this 
     proceeding was the Vice-President of the managing agent for the subject 
     landlord, "and was thus entitled to sign for the agent filing on behalf of 
     the owner."

     After careful consideration, the Commissioner is of the opinion that the 
     tenant's petition filed under Docket No. EE520193RT should be denied.

     The Rent and Eviction Regulations were amended in 1970 to provide for the 
     establishment of the Maximum Base Rent system.  Included in the formula 
     for establishing Maximum Base Rents is an allowance for payroll expenses.  
     Section 2202.11 of the City Rent and Eviction Regulations provides that 
     maximum rents may be increased where an owner incurs, or is obligated to 
     incur, payroll expenses for building service employees which exceed the 
     formula provision for labor costs recognized in establishing the maximum 
     gross building rental under Section 2201.4 of the City Rent and Eviction 
     Regulations.  A landlord is not eligible for such an increase until the 
     rent agency has issued an MBR order of eligibility for the applicable MBR 
     cycle.

     The Commissioner points out that in this order, the Commissioner affirmed 
     the Administrator's order issued under Docket No. CH420051BT, which 
     granted the landlord MBR increases for the 1986-1987 period, effective 
     January 1, 1986.  The Commissioner also points out that in affirming 
     Docket No. CH420051BT, the Commissioner had determined that, based on the 
     rent agency's record, the landlord removed the requisite number of 
     violations against the subject building to be eligible for MBR increases 
     for the 1986-1987 period.




          DOCKET NOS.:  EE520193RT
              EK420358RT



     Accordingly, based on the rent agency's records, the Commissioner finds 
     that the tenant's allegation that the subject landlord is not eligible for 
     1986-1987 MBR increases and L.C.A. increases due to building-wide service 
     reductions and pending rent-impairing violations is without merit.

     Based on the evidence submitted by the subject landlord, and the tenant's 
     own admission, the Commissioner finds that there are eight building 
     service employees employed in the subject building, consisting of one 
     superintendent, one handyman, four doormen, one full-time porter, and one 
     part-time porter. 

     The record reflects that the subject building contains 102 apartments.  
     Furthermore, the Commissioner notes that the subject landlord's 
     application for a L.C.A. to the maximum rents for the 1984-1985 MBR cycle 
     listed the subject building as containing 102 apartments.  The 
     Commissioner further notes that the Administrator granted the above- 
     mentioned L.C.A. application in an order issued on December 30, 1985 under 
     Docket No. UC000012AC, and that that order is a final determination of the 
     rent agency. As to the tenant's assertion that the subject building's 
     Certificate of Occupancy list the subject building as containing 103 
     apartments, the Commissioner finds that the subject tenant did not submit 
     a copy of the building's Certificate of Occupancy in this proceeding, and 
     as such it is not a part of record in this proceeding.  Accordingly, the 
     Commissioner finds that the subject building contains 102 apartments.

     Based on the record in this proceeding, the Commissioner is of the opinion 
     that the subject tenants were not served with a copy of the landlord's 
     revised L.C.A. application.  However, the Commissioner finds that there 
     has been no denial of the tenants' right to due process in this 
     proceeding, as the tenants were served with the landlord's original L.C.A. 
     application, and as such, the tenants had notice of the issues in this 
     proceeding, and had an opportunity to respond to those issues.

     The Commissioner finds that the errors in the landlord's original 
     application that were noted in the tenant's petition were corrected by the 
     landlord in its revised application.

     The Commissioner further finds that the subject landlord properly complied 
     with the L.C.A. application procedures, and that the Administrator 
     properly determined that the landlord was eligible for a L.C.A. to the 
     maximum rents for the 1986-1987 MBR cycle, based on the applicable 
     provisions of the City Rent and Eviction Regulations.  Furthermore, the 
     Commissioner finds that the subject tenant has not raised any issues that 
     would warrant the revocation of the Administrator's order granting the 
     L.C.A. in this proceeding.

     The Commissioner is of the opinion that it was proper for the Vice- 
     President of the landlord's managing agent to sign the landlord's L.C.A. 
     application in this proceeding.

     THEREFORE, in accordance with the City Rent and Rehabilitation Law and the 
     Rent and Eviction Regulations, it is 










          DOCKET NOS.:  EE520193RT
              EK420358RT

     ORDERED, that these petitions be, and the same hereby are, denied, and 
     that the orders of the Rent Administrator's be, and the same hereby are, 
     affirmed.

     ISSUED:



                                                                              
                                                     JOSEPH A. D'AGOSTA
                                                     Deputy Commissioner
    

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