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




                                                      
         





    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name