FI 930327 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. No.: 5869
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FI 930327 RO
126 Franklin Avenue Associates, DISTRICT RENT ADMINISTRATOR
DOCKET NO.: NEH-9-1-0002-OH
PETITIONER
-----------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 6, 1991, the above-named owners timely refiled a
petition for administrative review of an order issued on May 7,
1991, by the Rent Administrator in the White Plains district
office of the above-referenced Division, concerning the housing
accommodations known as 126 Franklin Avenue (various apartments),
New Rochelle, New York in which order the Administrator had
denied an application for permission to raise rents based on the
owner's hardship.
Later, in conjunction with another matter pending before the
Supreme Court, the owners requested the court to rule on the
instant matter before the Division entertained the instant
petition. On October 23, 1991, Justice LaCava denied that
request and remitted the proceeding to the Division for the
Commissioner's determination.
This proceeding originated in June of 1990 with the
aforementioned "alternative hardship" application. On a
"Qualification Form" attached to the application, the owners were
asked inter alia if they had "resolved all legal objections to
any real estate, and/or [sic] water and sewer charges for the
test year." They checked a box marked "no." Next to that box the
form stated: "Stop. You do not qualify for an Alternative
Hardship Increase at this time." The owners nevertheless
completed and filed the application.
The aforementioned order of May 7, 1991, denied the requested
relief because "[t]he owner has not resolved its tax certiorari
for the subject premises, for the test year." That determination
is here appealed.
Petitioners first argue that there is no requirement that a tax
certiorari proceeding be concluded before a hardship application
is filed, asserting in support of that statement that neither the
application forms nor the accompanying instructions made
reference to such a requirement. Both as to the law and as to
the aforementioned forms, however, petitioners are incorrect.
The Tenant Protection Regulations provide that "[n]o owner may
file an application nor may the Division grant such owner [a
hardship] increase unless the owner has resolved all legal
objections to any real estate taxes . . . for the test year."
FI 930327 RO
Petitioners do not dispute that their pending certiorari
proceeding constitutes an unresolv d legal objection to real-
estate taxes for the test year. They were warned by the
pertinent form, moreover, not to file the application in question
if such an objection was then outstanding. See p. 1, supra.
The other assignment of error turns on the contention that since
the amount of disputed tax is much smaller than that of the
requested rental increase, the latter should not have been denied
in toto. That argument, however, assumes a discretion in the
Administrator that the latter does not have. The pertinent
regulation, quoted above, makes clear that a hardship application
filed (wrongfully) while a real-estate tax dispute is pending,
cannot be granted by the Division.
Petitioners in sum having shown no error on the Administrator's
part, it is
THEREFORE ORDERED in accordance with the Emergency Tenant
Protection Act and the Tenant Protection Regulations, that this
petition be and the same hereby is denied and the Rent
Administrator's order, affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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