ADM. REVIEW DOCKET NO.: FB230077RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FB230077RO
BRIGHTON REALTY ASSOCIATES NO.: EJ220068BO
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 2954 Brighton 12th Street, various
apartments, Brooklyn, 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, EJ220068BO was
issued on January 18, 1991. In that order, the Administrator
affirmed the finding of EA220419BR, issued September 27, 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 specifically, that the owner had not repaired 80%
of the non rent impairing violations cited at the subject premises
by an inspector of the New York City Department of Housing
Preservation and Development (HPD).
On appeal, the owner argues that 80% of the non rent impairing
violations have been repaired. The owner submits on appeal in
support of this contention various repairmen's bills, an affidavit
from the building superintendent, and a copy of an HPD Violation
Status Report (VSR).
The Commissioner is of the opinion that this petition should
ADM. REVIEW DOCKET NO.: FB230077RO
Section 2202.3(h) of the New York City Rent and Eviction
Regulations provides that, in order to gain eligibility to increase
MBRs at a particular premises the owner must certify to the DHCR
that 80% of the non rent impairing (and 100% of the rent impairing)
violations of record at that particular premises one year before
the effective date of the order of eligibility have been repaired
by six months before the effective date. In the instant
proceeding, the owner had to certify that 80% of the non rent
impairing violations of record at the subject premises as of
January 1, 1989 had been repaired by July 1, 1989.
An examination of the record reveals that a List of Pending
Violations (LPV) relied on by the Administrator in this proceeding
found that, as of January 1, 1989 there were one rent impairing and
18 non rent impairing violations outstanding against the subject
premises. An HPD inspection of the subject premises, conducted on
August 14, 1989 (after the passing of the deadline for repairs)
found that the rent impairing violation had been repaired, as had
five of the non rent impairing violations.
The Commissioner is of the opinion that the evidence submitted
by the owner on appeal is insufficient to justify the
Commissioner's overturning of the Administrator's finding below.
The Commissioner concedes to the findings of the VSR submitted by
the owner. The various repairmen's bills submitted by the owner
attest to repairs of defects already reflected in the August 14,
1989 HPD inspection report. The repair of the various violations
allegedly asserted in the superintendent's affidavit are not
reflected in the various HPD documentation. (The LPV and August
14, 1989 inspection report relied on by the Administrator and the
VSR submitted by the owner on appeal). The Commissioner notes that
the superintendent's affidavit is dated February 6, 1991. The
affidavit may thus be vouching to the performance of repairs after
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.
JOSEPH A. D'AGOSTA