Docket No. FL420522RT








                                    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. FL420522RT 
            

                                                  DISTRICT RENT
          Various Tenants Residing At             ADMINISTRATOR'S DOCKET
          235 West 76th Street, New York,         NO. DC420051BT 
          New York                                   (BL427653BR)
                                   PETITIONERS
          ------------------------------------X


            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 












          Docket No. FL420522RT

          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 






          Docket No. FL420522RT

          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 












          Docket No. FL420522RT

          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 
          are true...."

              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 
          building.

              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 
          RSC.

              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.






          Docket No. FL420522RT


          ISSUED:



                                                                            
                                             Joseph A. D'Agosta
                                             Acting Deputy Commissioner






    

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