ADM. REVIEW DOCKET NO.: EC430474RO
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.: EC430474RO
SULZBERGER-ROLFE, INC.
C/O ROSENBERG & ESTIS, P.C.
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: DG420535BO
(BL425474BR)
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
UPON REOPENING
The above-named owner filed a timely petition for
administrative review of an order issued concerning the housing
accommodations known as 220 West 93rd Street, various apartments,
New York, 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, DG420535BO was
issued on February 23, 1990. In that order, the Administrator
affirmed the finding of BL423474BR issued June 22, 1989, that the
owner be denied eligibility for a 1988/89 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, specifically that one rent impairing violation
(item # 190 per the records of the New York City Department of
Housing Preservation and Development (HPD)) had not been repaired.
On appeal, the owner contended that item # 190 was repaired.
The owner submitted a report of an HPD inspection conducted on
November 16, 1989 in support of this contention.
ADM. REVIEW DOCKET NO.: EC430474RO
In an order issued on April 13, 1993 under Docket #DC430474RO,
the Commissioner denied the owner's appeal and affirmed the
Administrator's order. The Commissioner found that the HPD report
submitted by the owner on appeal was dated November 1989, nearly
two years after the effective date of the order of eligibility, and
that the Administrator was thus correct in finding that the owner
had failed to certify that it had corrected 100% of rent impairing
violations outstanding at the subject premises.
On May 18, 1993 the owner requested that the instant
proceeding be re-opened. The owner based this request on its
contention that the one remaining rent impairing violation (#190)
did not represent a physical defect, but was of a procedural nature
(failure to notify the HPD of a change in building agent). The
owner contended that a late repair (as noted above) would still
gain the owner eligibility, and that the Commissioner had
disregarded various documentation, such documentation consisting of
HPD Registration Applications (Applications).
The owner's request for reopening was granted on June 7, 1993.
The Commissioner is of the opinion that this petition should
be denied.
The owner submitted on appeal an HPD inspection report
disclosing that violation #190 was "waived" by the HPD by November,
1989. The Commissioner agrees with this conclusion, but is of the
opinion that the HPD inspection report is probative of nothing
more.
The owner submitted with its request for reopening, and on
appeal, various Applications purportedly to support the owner's
contention on appeal that the HPD had been notified of the change
in building agent. The Applications were signed by the new agents
and were notated with the date(s) upon which their agency began.
The Commissioner notes that the Applications submitted with the
request are different than those submitted on appeal. With its
request, the owner submitted the Applications of Gregg Carlovich
(signature dated November 8, 1984 and stamped "Change of Agent
August 28, 1985") Robin H. Winter (July 30, 1985 and August 20,
1985), Lloyd Hezekiah (April 7, 1986 and May 8, 1986), and Peter
Britz (March 31, 1987 and March 2, 1989). On appeal the owner had
submitted the following Applications: Diane Robson (December 22,
1988, unstamped and (March 22, 1990, unstamped).
The Commissioner notes that the Applications submitted on
appeal, if accepted by the Commissioner were, at the most,
ADM. REVIEW DOCKET NO.: EC430474RO
probative of Diane Robson's being named the owner's agent for the
subject premises on December 22, 1988 and/or March 22, 1990. The
Commissioner further notes that these Applications were not
stamped. The Applications submitted upon the owner's request for
reopening were however, stamped. The Commissioner notes that the
Applications submitted by the owner with its request for reopening
were dated earlier than the Applications submitted on appeal.
Inasmuch as the owner's argument for reopening is based upon
evidence which was not available to the Commissioner upon appeal
or to the Administrator at challenge, and upon evidence which,
although available to the Commissioner on appeal is not probative
of the owner's contention the Commissioner is of the opinion that
the Administrator was correct in denying the owner eligibility to
increase the 1988/89 MBRs at the subject premises.
The Commissioner additionally notes that upon the granting of
the owner's request for reopening, a thorough search of the file
was conducted for any information related to the reopening. While
this search did not reveal any previously-unexamined evidence
indicating whether the owner had cleared Violation # 190, the
search did disclose the absence from the file of any evidence of a
timely filing by the owner of the Violation Certificate (VC). The
grant of eligibility to raise MBRs is contingent upon the timely
filing of the VC.
On June 15, 1993 the Commissioner sent a letter to the owner
at its address of record, requesting evidence of a timely filing of
the VC. The leter explicitly advised the owner to respond to the
letter within 20 days. As of the issue date of this order, no
reply has been received from the owner.
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
Administrator be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
ADM. REVIEW DOCKET NO.: EC430474RO
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