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.: 6407
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:FK 430333-RO
:
LEON MELOHN RENT ADMINISTRATOR'S
DOCKET NO.:CH 430196-OM
PETITIONER :
------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
This order and opinion is issued pursuant to a decision of Justice
Milton Williams of the Supreme Court, New York County, remitting an Article
78 proceeding and directing the Division of Housing and Community Renewal
(DHCR) to issue a determination of the owner's administrative appeal herein.
The owner of the subject premises (located at 327 Central Park West New
York, New York, various apartments) initiated the proceeding below by
initially filing on August 29, 1988 an application for major capital
improvement (MCI) rent increases for the controlled and stabilized
apartments in the premises based on the installation of thermal replacement
windows at the premises. The owner submitted documentation in support of
the application, including a copy of an incomplete an undated contract and
cancelled checks for the work herein. Various tenants filed answers
objecting to the application, specifically alleging, among other things that
51 windows in five specific apartments had not been installed.
On October 10, 1990 the owner submitted an affidavit, signed by a trustee of
the subject premises, concerning the window installation in lieu of the
contractor and/or vendor certification asserting the contractor had failed
to comply with his requests to provide same.
On August 9, 1991 the Rent Administrator served the owner with copies of the
tenants' answers to the application and requested the owner to submit a
response. In reply the owner submitted a request for an extension of time
in which to respond thereto.
On August 12, 1991 the Administrator requested the owner to submit a list of
the number of windows installed in each apartment and the number of windows
located in each apartment. In response, the owner on August 15, 1991,
submitted a request for an extension of time in which to respond to said
notice. The owner noted that the Administrator's request indicated it was
"page 2 of 2" and that owner advised that the mailing arrived without "page
1".
On September 10, 1991 the Administrator served the owner with a final notice
directing him to submit within 21 days the following information which the
notice indicated had been previously requested:
DOCKET NUMBER: FK 430333-RO
1. a copy of a dated, executed contract for the window
installation;
2. a response to the tenants' responses to the
application;
3. an explanation of the discrepancy between the room
count indicated in the application and the count
indicated in the accompanying rent roll;
4. on August, 1988 rent roll including the super and
professional tenants and room counts
5. an affidavit from the vendor indicating the reason
the installation took 16 months to complete; and
6. lists of the number of windows installed in each
apartment and the number located in each
apartment.
On October 4, 1991 the owner again requested an extension of time in which
to respond to said final notice.
In the order appealed herein, issued October 11, 1991, the Administrator
denied the owner's MCI application based upon a determination that the owner
had submitted incomplete information/evidence and failed to comply with
requests and follow-up requests for information/evidence.
On appeal the owner contends that he was not afforded an adequate
opportunity to submit the material requested by the Administrator during the
proceeding below; that one of the requests was incomplete; that some of the
material requested was either unnecessary or had been previously submitted;
and that the Administrator failed to respond to the owner's extension
requests.
Various tenants filed answers to the petition stating, in substance, that
the owner was provided sufficient opportunity to submit the requested
information and failed to do so and therefore the petition should be denied.
In reply to the tenants' response the owner rejects the statements made
therein. The owner also submits a dated copy of the contract for the window
installation.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that the administrative appeal should be
denied.
A review of the record shows that the owner failed to provide any
information or documentation requested by the Administrator in three
separate notices either during the proceeding below or with his petition.
The Commissioner notes that the owner specifically was advised that failure
to comply with the requests would result in a determination based solely on
the record. The only requested material submitted by the owner was a dated
copy of the executed contract which was belatedly included as part of his
reply to the tenant's answer to the petition. The owner has not provided
sufficient explanation as to his failure to submit the requested material
DOCKET NUMBER: FK 430333-RO
during the proceeding before the Rent Administrator, information requested
three times, with respect to the building-wide nature of the installation.
Accordingly, the Commissioner finds that the Administrator properly denied
the MCI application based on the owner's failure to submit complete
information/evidence and failure to comply with requests for such
information/evidence.
Regarding the owner's contention that one of the requests was incomplete,
the Commissioner notes that the owner was subsequently served with a
"complete" request, which included items the owner acknowledges had been
previously requested, and another opportunity to reply.
Regarding the owner's contention that the Administrator failed to respond to
his extension requests the owner cites on appeal an order previously issued
under Administrative Review Docket No. BB 410206-RO in which the
Commissioner found that under the facts of that proceeding it was erroneous
for the Administrator to have defaulted the owner in that case in view of
the agency's failure to respond to the owner's extension request. The case
cited is clearly distinguishable from the instant matter since the owner
therein was served with only one request for information and, although said
owner failed to submit the information below, it did submit the requisite
documentation with its administrative appeal. In the instant case, the
owner was sent three notices specifically requesting information regarding
the number of windows in each apartment and the number windows installed in
each apartment. Although other additional information was also requested,
the owner failed to submit any of the requested information either below or
with its appeal. The DHCR is not required to grant unlimited requests for
extensions of time to answer.
THEREFORE, in accordance with the Rent and Eviction Regulations for New York
City and the Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied, and the Rent
Administrator's order be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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