Docket No. FG430158RO
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.: FG430158RO
DISTRICT RENT
Erwin Weiss, Managing Agent ADMINISTRATOR'S DOCKET
NO.: EH420158BO(DJ422300BR)
PETITIONER
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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 229 East 12th Street, various apartments,
New York, New York.
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, EH420158BO was issued
on May 31, 1991. In that order, the Administrator affirmed the
finding of DJ422300BR issued August 3, 1990, that the owner be
denied eligibility for a 1990/91 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 makes several arguments contesting the
Administrator's decision. The owner submits a copy of a letter
sent to him on March 27, 1987 by the New York City Department of
Housing Preservation and Development (HPD) concerning the most
recent HPD inspection of the subject premises. The owner on appeal
interprets this letter as clearing all violations from the
subject premises.
Docket No. FG430158RO
The owner on appeal states that court-ordered inspections of
the subject premises conducted during 1987 and 1988 disclose that
violations of record as of June 10, 1987 did not exist.
The owner on appeal also alleges that various violations were
tenant-created, and as such the owner is not under any duty to
clear them.
The owner on appeal submits an affidavit from a licensed
engineer, in which the affiant testifies that he inspected the
subject premises on September 8, 1990 and that various violations
had been cleared.
The Commissioner is of the opinion that this petition should be
denied.
Pursuant to the owner's request at Challenge an inspection of
the subject premises was conducted by the DHCR. The DHCR
inspector's report disclosed that the owner had failed to clear
sufficient violations in order to receive eligibility to raise MBRs
at subject premises for 1990/91.
Section 2202.3(h) of the New York City Rent and Eviction
Regulations requires owners to clear violations which are of record
as of one year before the effective date of the order of
eligibility. As such, inspections of the subject premises (Court
ordered or otherwise) disclosing violation clearance in previous
years are irrelevant to the Administrator's finding, as is any
communication from the HPD maintaining same.
As noted above, the engineer's inspection upon which the owner
relies in asserting the clearance of violations occurred on
September 8, 1990. The Commissioner notes, however that the DHCR
inspection referred to above was conducted during May, 1991. The
Commissioner is thus of the opinion that any violations reported as
cleared by the engineer and found to be uncleared by the DHCR
inspector may have recurred during the intervening eight months.
As for the owner's contentions on appeal that he is not
responsible for violations caused by tenants: Depending on the
nature and frequency of violations allegedly caused by tenants, the
DHCR may waive the owner's requirement to clear these violations.
In order to be eligible for such a waiver the owner, however must
submit documentary proof to the Administrator that the tenant was
put on notice as to the existence of the violation. Such proof may
take the form of a certified letter to the tenant. The
Commissioner is of the opinion that the owner has not presented any
such proof in the instant proceeding.
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations, it is
ORDERED, that this petition for administrative review be, and
Docket No. FG430158RO
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
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