ADM. REVIEW DOCKET NO.: FF430218RO
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.: FF430218RO
MICHAEL ROBERTSON C/O DISTRICT RENT
BUCHBINDER & WARREN ADMINISTRATOR'S DOCKET
NO.: EK420024BO
(DJ420725BR)
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 350 East 54th Street, various apartments,
New York, 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, EK420024BO was
issued on May 31, 1991. In that order, the Administrator affirmed
the finding of DJ420725BR, issued October 25, 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. The Administrator specifically found that the
owner had failed to clear one rent-impairing and at least three non
rent-impairing violations, as reported in the List of Pending
Violations (LPV), from the subject premises.
On appeal, the owner argues that it has cleared a sufficient
number of violations. As alleged proof of this contention, the
owner submits on appeal a copy of a New York City Department of
Housing Preservation and Development (HPD) report of an HPD
inspection made of the subject premises on November 28 and December
5, 1990, said report specifying that one rent-impairing and two non
rent-impairing violations had been cleared. The owner
ADM. REVIEW DOCKET NO.: FF430218RO
also submits on appeal an affidavit from a Licensed Professional
Engineer, in which the engineer testifies that of all the
violations reported on the LPV, only one non rent-impairing
violation remains outstanding. The affidavit is dated February 11,
1991.
The Commissioner is of the opinion that this petition should
be denied.
Section 2202.3(h) of the New York City Rent and Eviction
Regulations states that, in order to gain eligibility to raise MBRs
at a given premises for a given cycle, the owner must certify to
the Administrator that 100% of the rent-impairing and 80% of the
non rent-impairing violations which were of record against the
premises as of one year before the effective date of the order of
eligibility were cleared by six months before the effective date.
In the instant case, the LPV reported that as of January 1,
1989 (one year before the effective date) there were one rent-
impairing and four non rent-impairing violations of record against
the subject premises. Therefore, in order to gain eligibility to
raise MBRs, the owner had to certify to the Administrator that the
one rent-impairing and at least three (4 X 80% = 3.2) non rent-
impairing violations had been cleared by July 1, 1989. MBR
inspections conducted on August 18 and 25, 1989 revealed that the
owner had failed to clear the requisite number of violations by
those dates. The Administrator thus denied the owner eligibility
in an order issued under docket # DJ420725BR.
The Commissioner is of the opinion that the evidence presented
by the owner on appeal is persuasive only that the violations were
cleared in an untimely manner (i.e., by November, 1990 at the
earliest). The Commissioner notes that in the Violation
Certificate, filed by the owner, on June 16, 1989, the owner
certified that, as of that date it had cleared a requisite number
of violations from the subject premises. As the owner contends on
appeal, such violations were cleared, but the evidence it submits
on appeal does not convince the Commissioner that the violations
were cleared before November, 1990-approximately 1 1/2 years after
the owner certified that the violations had already been cleared.
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
ADM. REVIEW DOCKET NO.: FF430218RO
Administrator be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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