FC 430268-RO
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 S.J.R. 5838
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NOS.:
FC 430268-RO
DAVID EISENSTEIN REAL ESTATE
c/o HORING & WELIKSON DRO DOCKET NO.:
7MBC 00353-M
PETITIONER (7MI 10218-M)
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On March 19, 1991 the above-named petitioner-owner refiled a
Petition for Administrative Review against an order issued on
October 26, 1990 by the Director of the Maximum Base Rent Unit,
92-31 Union Hall Street, Jamaica, New York concerning housing
accommodations known as 755 West End Avenue, New York, New York,
various accommodations.
Subsequent thereto, the petitioner-owner filed a petition in the
Supreme Court pursuant to Article 78 of the Civil Practice Law
and Rules requesting that the "deemed denial" of the petitioner's
administrative appeal be annulled. The proceeding was them
remitted, by Court order, to the Division for consideration of
the petitioner's administrative appeal.
On January 27, 1987, the Director issued an order granting
1986-1987 MBR increases for the subject building. (Docket No.
7MI 10218-M).
On October 26, 1990, the Director issued the order appealed
herein which revoked the January 27, 1987 order based on a
determination that the owner had failed to meet the violation
certification requirements in order to qualify for 1986-1987 MBR
increases. The Director indicated that a January 28, 1988
inspection conducted by the Office of Code Enforcement showed
that among other things, three (3) rent impairing violations were
still unabated.
In this petition, the owner contends that all of the rent
impairing violations reported in the 1986 MBR List of Pending
Violations were cleared well in advance of the 1988 inspection
and that "[a]t the very least, the list in 1986 was pared down
from seven such violations to two violations." The owner further
contends that the two rent impairing violations, which concern
the removal of rubbish and other encum-brances, that appeared on
the 1986 list and again in the 1988 inspection report did not
relate to the same items, i.e., that the rubbish, etc. referred
to in the 1986 list was not the same rubbish referred to in the
1988 inspection report. The owner submits a statement from the
managing agent who asserts the these violations have been
removed.
The Commissioner is of the opinion that this petition should be
denied.
Procedures established under the Rent and Eviction Regulations
provide, among other things, that no rent increase may be
authorized under the Maximum Base Rent program commencing January
1, 1986 unless the owner has removed all of the rent impairing
violations (as defined in the multiple dwelling law Section
302(a) and at least 80% of all other (i.e., non-rent impairing)
violations on record as of January 1, 1985, or six months prior
to the filing of the 1986-87 violation certification, whichever
is later. In this proceeding, the owner certified on July 26,
1985 that it had removed the violations which were on record, six
months earlier.
The 1986 MBR List of Pending Violations for the subject building
shows that on January 1, 1985 there were seven (7) rent impairing
violations and twenty-eight (28) non-rent impairing violations
pending against the subject building. Therefore, in order to
qualify for 1986-87 MBR increases, the owner was required to
correct the seven (7) rent impairing violations and twenty-three
(23) of the 28 non-rent impairing violations.
On January 28, 1988, inspectors from the Office of Code
Enforcement conducted a physical inspection of the subject
premises and reported, among other things, that three (3) rent
impairing violations were unabated. Based thereon, it cannot be
found that the requisite number of violations pending against the
subject building as of January 1, 1985 were cleared, corrected or
abated. Therefore, the owner is not entitled to 1986-87 MBR
increases.
Regarding the owner's contentions that it had removed all
violations prior to the 1988 inspection and that the rubbish,
etc. reported in the 1988 inspection is not the same as that
reported in the 1986 MBR List of Pending Violations, the
Commissioner notes that the report of the Office of Code
Enforcement inspec-tors is of greater probative value than the
bare allegations of the owner regarding the existence of
violations.
Further, the owner has not submitted sufficient evidence to
substantiate its contentions. The fact that the rubbish, etc.
reported in 1986 and that reported in 1988 are not the same is
not relevant in determining whether the violations related
thereto exist. It is the owner's responsibility to see that the
violations in question the existence of any rubbish and
encumbrances in the designated areas are cleared, corrected or
abated.
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations, it is
ORDERED, that this petition be, and the same hereby is, denied;
and the Director's order be, and the same hereby is, affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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