ADM. REVIEW DOCKET NO.: FG430162RO
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
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FG430162RO
DISTRICT RENT
MICHAEL ROBERTSON ADMINISTRATOR'S DOCKET
BUCHBINDER & WARREN NO.: EJ420048BO
(DJ420751BR)
PETITIONER
------------------------------------X
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 184 8th Avenue, Apts. 3S, 4S, 5S, 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, EJ420048BO was
issued on June 28, 1991. In that order, the Administrator affirmed
the finding of DJ420751BR, issued September 20, 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.
On appeal, the owner reiterates the arguments he made at
Challenge and resubmits copies of the evidence he submitted at
Challenge in support of his arguments. The owner argues that all
outstanding violations have been removed and he should thus be
granted eligibility. The evidence submitted by the owner consists
of letters to tenants of various apartments in which violations are
located, and an affidavit from the building superintendent
attesting to the removal of all violations found in public areas.
ADM. REVIEW DOCKET NO.: FG430162RO
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 obtain eligibility to increase
MBRs at a given premises for a given cycle, the owner of that
premises must certify to the Administrator that, inter alia 100% of
all rent-impairing and 80% of all non rent-impairing violations
outstanding against the subject premises have been cleared.
A List of Pending Violations (LPV) discloses that, as of
January 1, 1989 (one year before the beginning of the 1990/91
cycle) there were one rent-impairing and nine non rent-impairing
violations outstanding against the subject premises. Therefore, in
order to gain eligibility to increase MBRs at the subject premises
for the 1990/91 Cycle, the owner had to certify that the one rent-
impairing violation and at least seven (9 X 80% = 7.2) non rent-
impairing violations had been removed.
The Commissioner is of the opinion that the evidence submitted
by the owner, both at Challenge and on appeal does not rebut the
Administrator's finding that the owner is not eligible for an MBR
increase for the 1990/91 Cycle at the subject premises described on
the LPV.
An examination of the owner's submission reveals that the
violations include six violations which were found in individual
apartments, and four (including the one rent-impairing violation)
which were found in public areas. As alleged proof of the
removal of the violations located in individual apartments, the
owner submits on appeal and at Challenge copies of letters to the
tenants of those apartments informing them of the violations
located within each apartment. Each letter requests that the
tenant inform the owner of the "status of each violation listed",
and requests that the tenant contact the owner upon receipt of the
letter. Each letter is dated September 3, 1990. As alleged proof
of the removal of the violations located in public areas, the owner
submits a copy of an affidavit signed by the building
superintendent and dated October 9, 1990, in which the
superintendent describes the four violations and states that the
required repairs have been made, and the violations thus removed.
Additionally, the owner argues on appeal that the one rent-
impairing violation was "tenant caused."
A D.H.C.R. inspection of the subject premises, conducted on
May 1, 1991 disclosed that one of the violations occurring within
individual apartments had apparently been removed, as had one of
the violations occurring within a public area.
ADM. REVIEW DOCKET NO.: FG430162RO
However, the D.H.C.R. inspector additionally found that the
one rent-impairing violation, despite the superintendent's
affidavit had not been removed. This violation (#333 on the LPV),
consists of boxes accumulating in a public hallway.
The Commissioner is of the opinion that the owner's
characterization of this rent-impairing violation as "tenant
caused" is irrelevant to his duty to remove that violation.
The Commissioner notes that the accumulation of boxes in a
public hallway, as described by violation #333 may affect other
tenants besides the tenant(s) who are allegedly causing the
problem. The Commissioner is therefore of the opinion that as the
clearance of rent-impairing violation #333 affects many tenants in
the subject premises the owner's duty to remove this violation is
absolute.
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
|