Docket No. FL420522RT
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. FL420522RT
Various Tenants Residing At ADMINISTRATOR'S DOCKET
235 West 76th Street, New York, NO. DC420051BT
New York (BL427653BR)
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On November 27, 1991 the above-described tenants filed a
petition for administrative review of an order issued November 1,
1991 by the Rent Administrator, concerning various housing
accommodations in the premises known as 235 West 76th Street, New
York, New York.
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant to
the issues raised by the petition for review.
The issue in this proceeding is whether the subject building's
1988-1989 maximum base rent (MBR) order of eligibility (issued on
February 17, 1989, under Docket No. BL427653BR) should have been
granted by the Division of Housing and Community Renewal (DHCR).
On March 22, 1989 the subject tenants filed a challenge of the
aforementioned order of eligibility.
In the order under review herein, the Administrator determined
that the subject landlords have met the prescribed violation
certification requirements for the establishment of the subject
building's 1988-1989 MBR, and affirmed the aforementioned order of
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eligibility, issued under Docket No. BL427653BR.
The subject tenants' petition asserts, among other things, that
the aforementioned order of eligibility should have been revoked by
the Administrator; that the tenants allege that the subject
landlords did not certify that all esential services are being
maintained at the subject building; that the tenants have submitted
prior orders of the New York City Department of Housing
Preservation and Development (HPD), showing that there still is
existing building violations pending against the subject building;
that the subject landlords have not certified that the pending
building violations have been corrected; that the tenants assert
that the DHCR's order contradicts "a determination by the Civil
Court (Gould, J.) made on September 18, 1990 that the tenants were
entitled to a 9 1/2% rent abatement from 1985 through 1989 based on
conditions in the building"; that the tenants allege that the
aforementioned court order shows that, "there were rent-impairing
conditions at the premises on January 1, 1987, one year prior to
the effective date of the MBR order"; that DHCR had issued an order
increasing the building's maximum rent based on the subject
landlords doing work on the subject building which qualified as
major capital improvements (MCI); that the basis for the increase
in the building's MBR is the same as for the increase in the
maximum rents due to the MCI; that the tenants state that, "the
landlord has been compensated twice for the same alleged expenses,"
and that the subject landlords have not showed the rent agency that
they have expended or incurred 90% of the allowance for operation
and maintenance expenses.
To their petition the tenants attach, among other things, a
letter signed by one of the subject tenants authorizing the filing
of the above-mentioned petition with DHCR by the tenants' attorney;
a printout from HPD of several reported violations against the
subject building; a copy of a New York County Housing Court order
dated September 18, 1990, issued under Index No. 63257/87, granting
some of the subject tenants a 9 1/2% rent abatement from May, 1985
to December, 1989 on the basis of reduction of services; a copy of
the landlords' application for an MCI rent increase filed with DHCR
on February 2, 1988, under Docket No. CB430002OM, and a copy of an
order issued by the rent agency on February 14, 1989, under Docket
No. AF430098OM, in which the Administrator determined that the work
done in the subject building constituted an MCI, and allowed an
increase in the subject tenants' maximum rents.
On October 1, 1992 the receiver of the subject building filed
an answer which alleges, among other things, that the tenants'
petition should be dismissed for being defective; that the
tenants' petition does not list the receiver as a party to this
proceeding; that only one of the subject tenants signed the
aforementioned letter authorizing the tenants' attorney to file the
petition in this proceeding; that the receiver states that: "It
should be found therefore that petitioner's representative act for
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a sole Tenant... without express written consent or authorization
of any of the other Tenants"; that the receiver asserts that
section 2523.6 of the Rent Stabilization Code, "specifically
requires that in order for a Tenant or a group of Tenants to
designate a representative, each Tenant must provided written
authorization to be accompanied by a Notice of Appearance"; that
since January 1, 1987 as DHCR has granted MCI rent increases for
the subject building, the receiver asserts that, "DHCR had to find
that the landlord was in fact maintaining all required or essential
services," and that the receiver alleges that the tenants' petition
should be denied.
After careful consideration, the Commissioner is of the opinion
that the tenants' petition should be granted.
The record reflects that HPD's-Division of Code Enforcement
issued a "Violation Status Report," dated November 28, 1988, which
noted that there are two outstanding rent-impairing violations
against the subject building. The record further reflects that
both of the above-mentioned violations were reported to HPD on
August 30, 1983.
Pursuant to Section 2202.3(h) of the City Rent and Eviction
Regulations, as the rent-impairing violations that were recorded
against the subject building by HPD one year prior to the effective
date of the 1988-1989 MBR order of eligibility (January 1, 1988),
were still pending six months before the effective date of the
1988-1989 MBR order of eligibility, the Commissioner finds that the
subject landlords have failed to meet the violation certification
requirements to qualify for the 1988-1989 MBR increase.
Accordingly, the Commissioner finds that the Administrator's
order issued on November 1, 1991, under Docket No.
DC420051BT(BL427653BR), should be revoked.
As the Commissioner has revoked the Administrator's order due
to the rent-impairing violations pending against the subject
building, the Commissioner finds that it is not necessary to decide
the issue pertaining to the operation and maintenance expenses.
As to the subject landlords and tenants reference to DHCR
issuing orders granting MCI rent increases for the subject
building, the Commissioner notes that petitions for administrative
review of the above-mentioned MCI orders have been filed with DHCR,
and that these petitions are still currently pending before the
rent agency in separate proceedings.
The Commissioner notes that this order and opinion does not
revoke or modify any order(s) of rent abatement pertaining to the
subject building, issued by a court of competent jurisdiction.
The rent agency's records reflect that the receiver of the
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subject building did not notify the rent agency of his ownership of
the subject building until the aforementioned receiver filed the
building's 1992 registration statement with DHCR, which was
received by the rent agency on July 30, 1992.
As the tenants' petition was filed with the rent agency on
November 27, 1991, and that the above-mentioned receiver did not
notify DHCR of his ownership of the subject building until the
subject building's 1992 registration statement was filed with DHCR
on July 30, 1992, the Commissioner finds that the receiver of the
subject building was not denied due process by not being listed on
the tenants' petition. The Commissioner further finds that the
subject tenants' petition is not defective for not naming the
above-mentioned receiver as a party to this proceeding, as at the
time the tenants' petition was filed with DHCR the above-mentioned
receiver was not the registered owner of the subject building.
Furthermore, the Commissioner notes that the above-mentioned
receiver in his answer, dated September 30, 1992, states that: "I
have read the foregoing petition and I affirm that my statements
Accordingly, the Commissioner finds that the subject building's
receiver had an opportunity to respond to the tenants' petition,
and, in fact, did respond to the tenants' petition.
The Commissioner finds that this order and opinion applies to
all of the subject building's rent-controlled tenants, even the
rent-controlled tenants that did not sign the authorization letter
permitting the tenants' attorney to file the aforementioned
petition in this proceeding, as the aforementioned petition is a
representative one seeking a determination that would affect not
some but all of the rent-controlled tenants in the subject
The Commissioner finds that the landlord's (receiver) assertion
that the Rent Stabilization Code (RSC) requires that the designated
tenants' representative must have written authorization to
represent the subject tenants in this proceeding is without merit
as the subject tenants are not subject to the provisions of the
The Commissioner finds that any excess rents which may have
been collected by the subject landlord, as a result of this order
and opinion, should be refunded to the subject tenants within
thirty days of the issuance date of this order.
THEREFORE, in accordance with the City Rent and Rehabilitation
Law and the Rent and Eviction Regulations, it is
ORDERED, that this petition be, and the same hereby is,
granted, and that the District Rent Administrator's order be, and
the same hereby is, revoked.
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Joseph A. D'Agosta
Acting Deputy Commissioner