ADM. REVIEW DOCKET NO.: FC630221RO
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.: FC630221RO
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: EH620225BO
FINKELSTEIN MORGAN REAL ESTATE
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 2075-2081 Wallace Avenue, Various
Apartments, Bronx, 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, EH620225BO was
issued on February 15, 1991. In that order, the Administrator
affirmed the finding of DK624108BR, issued August 3, 1990, that the
owner be denied eligibility for a 1990/91 Maximum Base Rent (MBR)
increase. The Administrator found that two outstanding rent
impairing violations, assigned the Nos. 1751 and 1785 had not been
corrected.
On appeal, the owner argues that Violation #1785 (obstruction
in the Northeast yard drain) refers to a "recurrent condition"
which is "corrected on a routine basis". The owner contends that
Violation #1751 which refers to a defective fire escape has been
corrected. The owner contends that Violation #1751 mistakenly
refers to a "3rd floor fire escape" while the defective fire escape
was actually on the fourth floor. As alleged proof of this
contention the owner submits with its appeal an affidavit from a
repairman who allegedly repaired the fourth floor fire escape in
February 1991.
ADM. REVIEW DOCKET NO.: FC630221RO
The Commissioner is of the opinion that this petition should
be denied.
Some violations are amenable to one-time repairs, while others
(i.e., the clogged outdoor drain in the instant case) can only be
cured via constant maintenance. Nonetheless, this distinction is
not to be found in the controlling legislation concerning MBRs.
Rather, the clogged drain is defined by the New York City
Department of Housing Preservation and Development (HPD) as a rent
impairing violation. As such, it must be in a state of repair as
of the HPD inspection upon which the Administrator relies in
granting eligibility to raise MBRs.
Owner's response on appeal, concerning Violation #1751 (the
defective fire escape) is both self-serving and unconvincing.
Besides the affidavit, there is no other evidence of repair to the
fire escape, nor is there any other evidence of the confusion
between the third and fourth-floor fire escapes alluded to by the
owner on appeal. The Commissioner notes that the affiant stated
that he repaired the fire escape during February 1991. Section
2202.3(h) of the New York City Rent and Eviction Regulations states
that all such repairs must have been completed by six months before
the effective date of the order of eligibility, in the instant
case, by July 1, 1989. As the owner thus concedes on appeal that a
violation was not repaired until over a year after the effective
date, the Commissioner is of the opinion that the Administrator was
correction its finding below.
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
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