ADM. REVIEW DOCKET NO.: FF530209RO
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.: FF530209RO
DISTRICT RENT
ROBERT J. KAFARSKI ADMINISTRATOR'S DOCKET
HUMBLE MANAGEMENT CORP. NO.: EI520005BO(DK420867BR)
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely petition for
administrative review of an order issued concerning the housing
accommodations known as 61 Hamilton Place, various apartments, New
York, 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, EI520005BO was
issued on May 17, 1991. In that order, the Administrator affirmed
the finding of DK420867BR, 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 owner contends that various violations cited
below have been repaired. Among those violations is one rent-
impairing violation (#287). Violation #287 is based on a New York
City Department of Housing Preservation and Development (HPD)
inspector's finding that the toilet in apartment #44 of the subject
premises was malfunctioning. The owner submitted on appeal a
repair order dated June 10, 1990 and signed by the tenant of
apartment #44, said signature attesting to the repair of the toilet
(and the ostensible clearing of violation #287).
ADM. REVIEW DOCKET NO.: FF530209RO
The Commissioner is of the opinion that this petition should
be denied.
Section 2202.3(h) of the New York City Rent and Eviction
Regulations states that in order to receive eligibility to raise
MBRs at a certain premises, the owner must certify inter alia to
the Administrator that 100% of the rent-impairing and 80% of the
non rent-impairing violations of record as of one year before the
effective date (usually one year before the first day of the cycle)
have been cleared. In the instant case, concerning the 1990/91
Cycle, the record date is January 1, 1989.
An examination of the record reveals a List of Pending
Violations (LPV) which states that, as of January 1,1989 there were
15 rent-impairing and 79 non rent-impairing violations of record
against the subject premises. In order to receive eligibility to
raise MBRs for the 1990/91 Cycle then, the owner would have to
certify that all of the rent-impairing and at least 63 of the non
rent-impairing (79 X 80% = 63.2) violations had been removed.
Under the docket # DK420867BR, the Administrator found that the
owner had not made such a certification.
In his Challenge to that order the owner submitted the report
of HPD inspections held at the subject premises on August 13 and
20, 1990. Although those inspections disclosed that a sufficient
number of non rent-impairing violations had been removed in order
to otherwise gain eligibility for the owner, rent-impairing
violation # 287 had not been removed.
The Commissioner notes that, despite the owner's documented
assertion on appeal that violation # 287 had been removed by June
10, 1990, HPD inspections conducted over two months later revealed
the continuing existence of that violation.
The Commissioner further notes that violation # 287 was
allegedly repaired on June 10, 1990, which was nearly one year
prior to the issue date of the Administrator's order being
appealed.
The Commissioner notes that the owner did not make this
argument (that violation # 287 had been removed) before the
Administrator below. The Commissioner is thus of the opinion that,
as the owner presented this argument for the first time on appeal,
despite the fact that it was available to the owner below, the
Commissioner cannot consider such a de novo argument on appeal.
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
ADM. REVIEW DOCKET NO.: FF530209RO
Administrator be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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