ADM. REVIEW DOCKET NO.: EB120393RO
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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: EB120393RO
DISTRICT RENT
STANLEY GAC ADMINISTRATOR'S DOCKET
NO.: DA120006BT
(BK122877BR)
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely petition for
administrative review of an order issued concerning the housing
accommodations known as 45-34 42nd Street, various apartments,
Sunnyside, N.Y.
The Commissioner has reviewed all the evidence in the record
and has carefully considered that portion of the record relevant to
the issues raised by the petition.
The issue before the Commissioner is whether the
Administrator's order was correct.
The Administrator's order being appealed, DA120006BT was
issued on December 29, 1989. In that order, the Administrator
revoked the finding of BK122877BR, issued December 9, 1988, that
the owner be granted eligibility for a 1988/89 Maximum Base Rent
(MBR) increase, due to the owner's meeting the violation
certification requirements necessary to the owner's being granted
an MBR increase. This grant of eligibility was challenged by the
tenants' representative, who claimed that inasmuch as there was a
building-wide Rent Reduction order against the subject premises
outstanding at the time of the issuance of the order of
eligibility, the Administrator was thus in error in granting the
owner eligibility. In revoking the previous grant of eligibility
the Administrator apparently disregarded the tenants' argument,
because notes in the file and the language of DA120006BT itself
indicate that the Administrator's decision under that docket # was
based solely on a finding by the Administrator that the owner had
not cleared the requisite number of violations from the subject
premises in order to obtain eligibility.
ADM. REVIEW DOCKET NO.: EB120393RO
On appeal, the owner makes various arguments as to how he has
cleared the requisite number of violations at the subject premises.
The Commissioner is of the opinion that this petition should
be granted.
The Commissioner first notes that at challenge, the tenants'
representative raised only one issue; that of an outstanding rent
reduction order. An examination of the record indicates that the
Administrator did not consider this issue at all in reversing the
order of eligibility but instead determined that the owner had
failed to certify to the clearance of a sufficient number of
violations so as to gain eligibility to raise MBRs for 1988/89 at
the subject premises.
The Commissioner is of the opinion that contrary to the
Administrator's finding below the owner has certified to the
removal of a sufficient number of violations at the subject
premises. As noted above the tenants' representative did not raise
this issue in her challenge below. An examination of the file
reveals no evidence of the owner's failure to thus certify to
violation removal.
The Commissioner is of the opinion that the Rent Reducing
order outstanding against the subject premises does not bar the
owner from raising 1988/89 MBRs at those premises.
An examination of the file reveals that on July 29, 1988 the
Administrator issued an order under docket #BK230097B which found
various building-wide service reductions at the subject premises
and thus ordered a rent reduction.
The Commissioner notes that the issue date of the above-
mentioned order is later than the January 1, 1988 effective date of
the order of eligibility under review herein. As such, the
Commissioner regards any attempt to supersede the order of
eligibility with the Rent Reduction order as an attempt to enforce
the Rent Reduction order on a retroactive basis, such enforcement
being beyond the scope of the Rent Reduction order.
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations, it is
ORDERED, that this petition for administrative review be, and
the same hereby is, granted, and that the order of the Rent
Administrator be, and the same hereby is, revoked. The order is
hereby granted eligibility to raise MBRs at the subject premises
for 1988/89, effective January 1, 1988, subject to the Terms and
Conditions on the attached sheet. The owner is directed to collect
rents from the rent-controlled tenants at the subject premises
ADM. REVIEW DOCKET NO.: EB120393RO
subject to the provisions of BK120097B and any and all such orders
restoring rent.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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