DOCKET NO.: EJ420230RO
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 :
APPEAL OF ADMINISTRATIVE REVIEW
: DOCKET NO. EJ420230RO
S & M ENTERPRISES, DISTRICT RENT ADMINISTRATOR'S
: DOCKET NO. DA420012BT
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 19, 1990, the above-named landlord filed a timely petition for
administrative review of an order issued on July 30, 1990 by a Rent
Administrator concerning various housing accommodations in the premises
known as 243 East 36th Street, New York, New York.
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.
In the order under review herein the Administrator stated that:
Landlord is barred from getting a 1988-1989 MBR increase
because of Harassment findings placed on building in 1985 by
Agency Enforcement Bureau and they are still pending.
The landlord's petition alleges, among other things, that the rent agency
issued an order on July 14, 1988, under Docket No. BL425184BR, which granted
the establishing of the 1988-1989 maximum base rent (MBR) for the subject
building; that the subject tenants filed a challenge to the above-mentioned
order; that the subject landlord did not receive a copy of the tenants'
challenge, and as a result, the landlord alleges, that it was denied due
process; that the Administrator's order contradicted an earlier rent
agency's order issued on April 17, 1990, under Docket No. DK422482BR, which
granted the subject building's 1990-1991 MBR order of eligibility; that the
applicable regulations in the Rent and Eviction Regulations do not condition
the granting of an MBR increase on a finding of no harassment; that Section
2206.5 of the Rent and Eviction Regulations provides that upon the
Administrator's finding of harassment the Administrator may refuse to credit
any adjustments increasing rent mandated by Part 2202 of the aforementioned
regulations; that the above-mentioned Part 2202 "governs the Adjustments;
Determination of Rents and Services" and not the granting of an MBR
increase; that "even if a finding of harassment could prevent the granting
of an MBR increase such is not mandatory, but discretionary"; that the
subject landlord asserts that it is maintaining all required services, and
that the Administrator's order under review herein should be revoked.
After careful consideration, the Commissioner is of the opinion that the
landlord's petition should be denied.
DOCKET NO.: EJ420230RO
Section 26-413 b.(3)(a)(iii) of the City Rent and Rehabilitation Law states
that the rent agency, when there is a finding of harassment may:
[R]efuse to credit any adjustments increasing rent
mandated by section 26-405 of this chapter and dismiss
any applications for an adjustment pursuant to said
Section for such time and under such terms and
conditions as the rent agency deems necessary to prevent
circumvention or evasion of the provisions of this
The Commissioner notes that the aforementioned Section 26-405 of the City
Rent and Rehabilitation Law contains provisions pertaining to the
establishment of maximum rents. The Commissioner further notes that Part
2202 of the Rent and Eviction Regulations, as mentioned in the
aforementioned Section 2206.5(a)(3) of the Rent and Eviction Regulations,
also contains provisions pertaining to the establishment of maximum rents
(i.e., Sections 2202.3(b)(2), 2202.3(f)(2), 2202.3(h), 2202.5(e), 2202.11,
and 2202.20(a) of the Rent and Eviction Regulations). Accordingly, the
Commissioner is of the opinion that the Rent and Eviction Regulations do
give the Administrator discretion in denying the establishment of an MBR
increase when there is an outstanding finding of harassment.
Furthermore, in the case of Seril v. Division of Housing and Community
Renewal, the Appellate Division stated that:
Because the record herein reveals extant findings of
harassment, failure to provide essential services, and
a continuous, consistent and uncorrected pattern of
'rent impairing violation', we conclude that DHCR did,
in fact, have a rational basis for denying the subject
applications for the years in question. DHCR's
determinations were, therefore, neither arbitrary and
capricious nor did they constitute an abuse of
discretion. Indeed, any one of the three grounds stated
above would have sufficed to support DHCR's denials of
the MBR applications for the periods in question.
See Seril v. Division of Housing and Community Renewal, 163 A.D.2d 131, 557
N.Y.S.2d 356, 357 (1st Dep't. 1990).
Accordingly, the Commissioner finds that the Administrator's order denying
the establishment of the 1988-1989 MBR should not be disturbed.
The Commissioner notes that the rent agency's records reflect that the
subject building has an outstanding finding of harassment against it since
October 30, 1985. The Commissioner further notes that the subject landlord
has not submitted any evidence showing that the rent agency's finding of
harassment has been removed for the time period in question.
Accordingly, the Commissioner finds that it was reasonable for the
Administrator to have denied the establishing of the subject building's
1988-1989 MBR, as there still is an outstanding finding of harassment.
DOCKET NO.: EJ420230RO
As the Administrator's determination to deny the establishment of 1988-1989
MBR was reasonable, due to the outstanding finding of harassment against the
subject building, the Commissioner finds that it is not necessary to make a
determination as to the other issues raised in the landlord's petition,
pertaining to the denial of the 1988-1989 MBR increase.
The Commissioner notes that the aforementioned tenants' challenge to the
establishment of the 1988-1989 MBR was not an adversary proceeding between
the landlord and the tenants, but was between the rent agency and the
tenants, and that the rent agency was not required to serve a copy of the
tenants' challenge on the landlord.
As the landlord does not allege that it did not have notice of the rent
agency's finding of harassment against the subject building, the
Commissioner finds that the landlord was not denied due process in this
The Commissioner notes that the rent agency's order issued on April 17, 1990
under Docket No. DK422482BR was revoked by a subsequent order issued on
January 11, 1991 under Docket No. EE420029BT, which revoked the 1990-1991
MBR order of eligibility for the subject building, based on the fact that
the subject building has an outstanding finding of harassment against it.
Accordingly, the Commissioner finds that the subject landlord's petition
should be denied.
THEREFORE, in accordance with the City Rent and Rehabilitation Law and the
Rent and Eviction Regulations, it is
ORDERED, that the petition be, and the same hereby is denied, and that the
District Rent Administrator's order be, and the same hereby is, affirmed.
Acting Deputy Commissioner