STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X ADMINISTRATIVE REVIEW
IN THE MATTER OF THE ADMINISTRATIVE DOCKET NO.: EH130088RT
Steven I. Feder, Esq.
PETITIONER DOCKET NO: BD110156OM
ORDER AND OPINION REMANDING PETITION FOR ADMINISTRATIVE REVIEW
On August 6, 1990 the above-named petitioner-tenant representative
filed an administrative appeal against an order issued on July 3,
1990 by the Rent Administrator (92-31 Union Hall Street, Jamaica,
New York) concerning the housing complex known as 224-46A Horace
Harding Boulevard/Expressway ("Cloverdale Gardens"), Bayside, New
York, various apartments wherein the Administrator granted major
capital improvement (MCI) rent increases for the stabilized
apartments in the subject premises based on the installation of new
windows at the premises.
The Commissioner notes that the subject premises was converted to
cooperative status in 1985.
In this petition the tenants contend, in substance, that the
subject premises has not been properly registered; that the MCI
application was not filed by a proper party; that reserve funds
were used to pay for the improvement; and that the new windows are
of "extremely inferior quality".
In response to the petition the owner asserts, in substance, that
the tenants cannot raise new arguments on appeal; that the premises
are properly registered; and that the windows were installed in a
The Commissioner is of the opinion that this processing should be
remanded to the Rent Administrator for further processing.
Regarding the tenants' contention that the subject premises has not
been properly registered, as noted above, the owner submitted a
response to the contrary. A review of Division records indicates
Adm. Rev. Docket No. EH130088.RT
that the subject premises has not been properly registered. Said
records disclose that the owner filed building registrations for
the subject complex for the years 1984 (initial), 1985, 1988 and
1989. In addition, during the proceeding below, the owner submitted
a DHCR date stamped copy of the 1986 building registration as proof
of filing thereof. However, although the owner also submitted a
copy of an annual registration summary for 1987, the year the MCI
application was filed, the owner did not submit any evidence of
proof of such registration, nor does it appear that such evidence
was requested. DHCR records further indicate that the subject
complex has not been registered for the years 1990, 1991 and 1992.
In view of the conflicting evidence and in light of Policy
Statement 92-3, which reflects DHCR policy regarding the type of
documentation required to substantiate proper registration,the
Commissioner finds that this proceeding should be remanded to the
Rent Administrator to determine whether the owner has fully
complied with registration requirements.
With respect to the tenants' contention that the MCI application
was not filed by a proper party, Section 2523.6 of the Rent
Stabilization Code provides, in pertinent part, that whenever an
attorney or other authorized representative appears for a party who
is involved in a proceeding before the DHCR, such person must file
a notice of appearance which shall be on a form prescribed by the
DHCR, unless the application which instituted the proceeding before
the DHCR stated the representation of such person and his or her
mailing address in the space allotted for the mailing address of
the represented party. If an authorized representative appears,
such notice of appearance must be accompanied by a written
authorization, duly verified or affirmed, by the party represented.
Although the record indicates that the MCI application was filed by
a representative on behalf of the owner's managing agent, the above
mentioned written authorization is not part of the record.
Accordingly, on remand, should the owner establish that the
premises have been fully registered, then the Administrator should
determine whether the MCI application was filed by a proper party.
With respect to the tenants' contention that the reserve fund was
used to pay for the improvement, although the owner indicated
Adm. Rev. Docket No. EH130088.RT
during the proceeding below that reserve funds were not used, the
owner was not provided an opportunity to submit any evidence to
substantiate same. In view thereof, on remand, should the owner
establish that the premises have been fully registered, then the
Administrator should determine whether reserve funds were used.
Regarding the tenants' contention that the windows are of extremely
inferior quality, the Commissioner notes that several tenants
raised complaints during the proceeding below regarding the quality
and adequacy of the window installation which were not properly
addressed. Specifically, the record reveals that a notice
requesting tenants to indicate whether the owner had corrected
alleged window installation problems and advising that an
inspection would be conducted if the owner had not done so was not
sent to all tenants who raised such complaints. Further, the
subsequent inspection of the premises did not include the
apartments of all tenants raising complaints about the
installation. Accordingly, the Commissioner finds that upon remand,
in the event the owner establishes that the subject premises have
been fully registered, the Administrator should consider the tenant
complaints regarding the quality and adequacy of the window
installation which were not properly addressed below.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that this proceeding be, and the same hereby is, remanded
to the Rent Administrator for further consideration in accordance
with this order and opinion. The automatic stay of so much of the
Rent Administrator's order as directed a retroactive rent increase
for the rent-stabilized tenants (which stay took effect upon the
filing of the petitions for administrative review) is hereby
continued until a new order is issued upon the remand. However, the
Administrator's determination as to a prospective rent increase is
not stayed and shall remain in effect until the Administrator
issues a new order upon the remand.
JOSEPH A. D'AGOSTA