ADM. REVIEW DOCKET NO.: FC130268RT
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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FC130268RT
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: EI120061BO
JULIUS WEINSTEIN, ET AL. (DL121795BR)
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named tenants filed a timely petition for
administrative review of an order issued concerning the housing
accommodations known as 68-64 Yellowstone Blvd., Apts. A33, A10,
A62, Forest Hills, 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, EI120061BO was
issued on February 15, 1991. In that order, the Administrator
revoked the finding of DL121795BR issued August 3, 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 tenants make various allegations contesting the
Administrator's grant of eligibility. The tenants first contend
that the owner was denied eligibility to raise MBRs at the subject
premises for the 1988/89 cycle.
The tenants also contend on appeal that the Administrator
erred by not serving them with a copy of the owner's Challenge to
the order below denying the owner eligibility. The tenants then
contend (after they had apparently examined the file) that the
owner's Challenge form was improperly filled out, inasmuch as the
owner did not indicate the tenants' names or addresses on the form.
ADM. REVIEW DOCKET NO.: FC130268RT
The tenants additionally submit evidence to support their
assertion that the owner has failed to clear the requisite number
of violations from the subject premises in order to gain
eligibility, this evidence consisting of a List of Pending
Violations (LPV) outstanding against the subject premises as of
October 21, 1990.
The Commissioner is of the opinion that this petition should
be denied.
The fact that the owner of the subject premises was denied
eligibility to raise MBRs for 1988/89 is irrelevant to the issue of
whether the identical owner is eligible to raise MBRs at the
identical premises for 1990/91.
Challenges to MBR Orders of Eligibility, whether by owners or
tenants are ex parte and therefore the Administrator's not serving
the tenants with the Order of Eligibility was not error. In
addition, the Commissioner notes that when the tenants did examine
the Challenge the defects alleged by the tenants in the owner's
Challenge form are of a relatively minor nature, not sufficient to
warrant denial of eligibility.
As to the owner's alleged failure to clear violations from the
subject premises:
Pursuant to Section 2202.3(h) of the New York City Rent and
Eviction Regulations an owner, in order to receive eligibility to
raise MBRs at a given premises for a given cycle must certify to
the Administrator that 100% of the rent-impairing and 80% of the
non rent-impairing violations of record against the subject
premises as of one year before the effective date have been
cleared.
In the instant proceeding the effective date of the
Administrator's order is January 1, 1990. Therefore, one year
before the effective date is January 1, 1989.
An LPV discloses that, as of January 1, 1989 there were 3
rent-impairing and 65 non rent-impairing violations outstanding
against the subject premises. Therefore, in order to gain
eligibility to raise MBRs at the subject premises for the 1990/91
cycle the owner in this proceeding was obligated to certify to the
clearance of all of the rent-impairing and at least 52 (80% x 65 =
52) of the non rent-impairing violations. A Violation Status
Report (VSR) compiled by the New York City Division of Housing
Preservation and Development (HPD) discloses that the requisite
number of violations had been cleared from the subject premises.
The Commissioner notes that Rent-Impairing Violation # 459 (repair
flushing apparatus in apartment B37) was noted on the VSR as "A"
ADM. REVIEW DOCKET NO.: FC130268RT
(HPD inspector was denied access to the subject apartment), and
that the owner submitted at Challenge an affidavit from the
superintendent of the subject premises, in which affidavit the
superintendent testified to the repair of the flushing apparatus.
The Commissioner notes that Violation # 459 remains
outstanding on the LPV submitted by the tenants on appeal. This
LPV is different in form from the LPV used by the owner as a basis
for clearing violations. The Commissioner is of the opinion that
the LPV submitted by the tenants on appeal is more in the form of
a compilation of previously recorded violations, and does not
indicate the results of previous HPD inspections. As such, the
Commissioner is of the opinion that the LPV submitted by the
tenants on appeal is not probative of their contention that the
owner has failed to clear violations at the subject premises.
The Commissioner notes that the Examiner's Progress Sheet is
of procedural use only and has no bearing on the Administrator's
(or Commissioner's) decision.
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
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