ADM. REVIEW DOCKET NO.: EB630214RO
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 ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: EB630214RO
WYNDHAM REALTY CO. C/O
FINKELSTEIN, BORAH, SCHWARTZ ET AL. DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: DG620407BO
(BK624544BR)
PETITIONER
------------------------------------X
ORDER AND OPINION DENYING 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 2145-47 Starling Avenue, various
apartments, Bronx, 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, DG620407BO was
issued on January 26, 1990. In that order, the Administrator
affirmed the finding of BK624544BR issued June 22, 1989, that the
owner be denied eligibility for a 1986/87 Maximum Base Rent (MBR)
increase, due to the owner's failure to meet the violation
certification requirements necessary to the owner's being granted
an MBR increase.
On appeal, the owner states that the Administrator was in
error in finding that the owner hadn't made sufficient repairs to
gain it eligibility. The owner contends that the Administrator
disregarded evidence that repairs were being made, as well as
refusing to reinspect the subject premises to ascertain that the
requisite number of violations had been repaired. The owner also
contends that the Administrator has exceeded the scope of its
authority by refusing to accede to owner's request that it
reinspect the premises. The owner cites Section 27-2115(f)(3) of
the Housing
ADM. REVIEW DOCKET NO.: EB630214RO
Maintenance Code in support of this contention. The owner also
alleges overreliance by the Administrator on the New York City
Department of Housing Preservation and Development (HPD)
inspections, contending that an owner's denial of eligibility may
result from an individual HPD inspector's error.
The Commissioner is of the opinion that this petition should
be denied.
When either the Administrator or the Commissioner considers
requests for eligibility to increase MBRs (as in the instant case)
the New York City Rent and Eviction Regulations are controlling.
Section 2202.3(h) of the New York City Rent and Eviction
Regulations states (in pertinent part):
(h) If, at least six months before the effective
date of the establishment of new maximum rents...
the landlord has not certified...that (1) all rent
impairing violations...and (2) at least 80% of all
other violations...have been cleared, corrected or
abated, such new maximum rents or such adjustment
shall not take effect...
The Commissioner is thus of the opinion that any repairs that
were ongoing at the time of the Administrator's order denying
eligibility, or any repairs that had been made since the effective
date are irrelevant to the Administrator's finding below.
The definition of "rent impairing" and "non rent-impairing"
violations are contained in the Housing Maintenance Code. An HPD
inspector is deemed by the Administrator to thus have competence in
this determination. An HPD inspection may be supplemented or
replaced by a D.H.C.R. inspection, if so necessary. Moreover, the
D.H.C.R.'s reliance on HPD inspections in order to determine an
owner's eligibility for an MBR increase has been upheld by the
courts.
The Commissioner notes that the D.H.C.R. does not have
jurisdiction over the Division of Code Enforcement or of any part
of the HPD, which is an agency of the City of New York.
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, denied, and that the order of the Rent
ADM. REVIEW DOCKET NO.: EB630214RO
Administrator be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
|