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 : SJR NO. 6791
APPEALS OF ADMINISTRATIVE REVIEW
: DOCKET NOS. FG420352RT and
DONNA SINGER and SEVERAL TENANTS FG420448RT
RESIDING AT 410 WEST 24TH STREET, : DISTRICT RENT ADMINISTRATOR'S
NEW YORK, NEW YORK, DOCKET NOS. EI410154BO and
PETITIONERS : DG420510BO
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
On July 16, 1991, the above-named tenants filed a petition for
administrative review (Docket No. FG420352RT) of an order issued on June
14, 1991 (Docket No. EI410154BO) by the Administrator concerning various
housing accommodations in the premises known as 410 West 24th Street, New
York, New York. On July 23, 1991, the above-named tenants filed a
petition for administrative review (Docket No. FG420448RT) of an order
issued on June 21, 1991 (Docket No. DG420510BO) by the Administrator,
concerning the above-mentioned premises.
Subsequently, the subject landlord filed a petition in the Supreme Court
of the State of New York, pursuant to Article 78 of the Civil Practice Law
and Rules, in the nature of an application for a writ of mandamus,
requesting that a determination of the petitioners' administrative appeals
be issued.
After considering the Article 78 petition, the Court issued an order
remitting the proceedings to the New York State Division of Housing and
Community Renewal (DHCR) for further consideration.
Since the petitions involve common questions of law and fact, the
Commissioner deems it appropriate to consolidate the proceedings for
disposition herein.
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 petitions for administrative review.
The issues in these proceedings are whether the Administrator should have
granted the subject landlord maximum base rent (MBR) increases for the
1988-1989 biennial cycle and the 1990-1991 biennial cycle.
DOCKET NOS.: FG420352RT
FG420448RT
On June 14, 1991 the Administrator issued the order under review herein,
under Docket No. EI410154BO, which granted the landlord MBR increases for
the 1990-1991 period, effective January 1, 1990.
On June 21, 1991 the Administrator issued the order under review herein,
under Docket No. DG420510BO, which granted the landlord MBR increases for
the 1988-1989 period, effective January 1, 1988.
On July 16, 1991 the tenants filed a petition, under Docket No.
FG420352RT, in which they allege, among other things, that the
Administrator's order issued under Docket No. EI410154BO should be revoked
as there are diminution of services in the subject building; that the
landlord should not be entitled to a retroactive MBR increase as, the
tenants state, "violations still existed in building at the time the order
was issued"; that the tenants filed with DHCR a complaint of diminution of
services, under Docket No. DD430041B; that an inspection of the subject
building was conducted by DHCR on June 18, 1991 which, the tenants state,
"disclosed that all violations as stated in Docket No. DD430041B still
existed at that time"; that some of the violations recorded against the
subject building on January 1, 1989 still exist; that as building
violations have not been removed the landlord is not entitled to an MBR
increase, and that the landlord is not maintaining all essential services
in the subject building.
On July 23, 1991 the tenants filed a petition, under Docket No.
FG420448RT, in which they allege, among other things, that the tenants
were not given notice of any MBR orders prior to the issuance of the 1990-
1991 MBR order of eligibility on June 14, 1991; that the 1988-1989 MBR
order of eligibility should not be retroactive to January 1, 1988 as there
are violations still pending against the subject building as of early
1988; that the subject landlord was not providing essential services to
the subject building, and that the 1988-1989 MBR order of eligibility
should be revoked.
After careful consideration, the Commissioner is of the opinion that both
of the tenants' petitions should be denied.
The record reflects that both the Administrator's orders under review
herein were based upon a finding that the subject landlord had met the
violation certification requirements, and other requirements for
eligibility for an MBR increase for the applicable biennial cycles.
The record further reflects that the subject landlord did in fact clear
the required number of violations to be eligible for the MBR increases for
the 1988-1989 and 1990-1991 biennial cycles.
As the subject landlord has met the requirements for MBR increases for the
aforementioned biennial cycles, pursuant to the applicable provisions of
the City Rent and Eviction Regulations, the Commissioner finds that it was
proper for the Administrator to have retroactively increased the maximum
base rents effective on the first day of the aforementioned biennial
cycles, i.e., January 1, 1988 and January 1, 1990, respectively.
DOCKET NOS.: FG420352RT
FG420448RT
As to the tenants' assertion that the subject landlord is not providing
the essential services that were specified in the tenants' service
reduction complaint, filed under Docket No. DD430041B, the record reflects
that the Administrator issued an order on September 24, 1990 under the
above-mentioned docket number, denying the tenants' service reduction
complaint, and finding that the landlord was maintaining all of the
essential services that were cited in the tenants' complaint.
The record further reflects that the tenants' filed a petition for
administrative review on October 16, 1990 of the above-mentioned
Administrator's order. On February 27, 1991 the Commissioner issued an
order under Docket No. EJ410329RT denying the tenants' petition. In the
above-mentioned Commissioner's order, the Commissioner noted that DHCR
conducted four separate inspections of the subject building which occurred
on November 2, 1989, April 4, 1990, June 20, 1990, and on August 7, 1990.
The Commissioner pointed out that the inspection reports noted that the
complained of conditions were not as alleged by the tenants. Based on the
four separate inspections, the Commissioner, in the order issued under
Docket No. EJ410329RT, found that the Administrator properly determined
that the landlord was maintaining services and properly denied the
tenants' rent reduction application.
Accordingly, the Commissioner finds that in this proceeding the record
does not support the tenants' assertion that the landlord is not
maintaining building-wide essential services as would warrant revocation
of the adjustments in the maximum base rents. However, the Commissioner
notes that this order is issued without prejudice to the right of any
tenant to file an application with the rent agency for a rent reduction
based on the landlord's failure to maintain services if the facts so
warrant.
As to the tenants' assertion that they did not receive notice of these
proceedings until they received the Administrator's order issued on June
14, 1991, the Commissioner finds that the landlord's applications for the
increases in the maximum base rents were not an adversary proceeding
between the landlord and the tenants, and that DHCR was not required to
serve the tenants copies of the landlord's application for increases in
the maximum base rents, and copies of the landlord's challenges to any
denial of an MBR order of eligibility.
The Commissioner further finds that there has been no denial of the
tenants' right to due process in this proceeding, as the subject tenants,
in these proceedings, had a full opportunity to contest the granting of
the landlord's orders of eligibility for MBR increases for the 1988-1989
period and the 1990-1991 period.
Accordingly, the Commissioner finds that the tenants' petitions should be
denied.
THEREFORE, in accordance with the City Rent and Rehabilitation Law and the
Rent and Eviction Regulations, it is
ORDERED, that the tenants' petitions be, and the same are, denied, and
that the Administrator's orders be, and the same hereby are, affirmed; and
it is
FURTHER ORDERED, that if there are retroactive rents due to the landlord
by any of the subject tenants as a result of the Administrator's order
issued on June 21, 1991 under Docket No. DG420510BO, which granted the
landlord MBR increases for the 1988-1989 period, such retroactive rent may
DOCKET NOS.: FG420352RT
FG420448RT
be payable in equal monthly installments equal in number to the months
between January 1, 1988 and June 21, 1991; and it is
FURTHER ORDERED, that if there are any retroactive rents due to the
landlord by any of the subject tenants as a result of the Administrator's
order issued on June 14, 1991 under Docket No. EI410154BO, which granted
the landlord MBR increases for the 1990-1991 period, such retroactive
rents may be payable in equal monthly installments equal in number to the
number of months between January 1, 1990 and June 14, 1991; and it is
FURTHER ORDERED, that if there are any retroactive rents due to the
landlord by any tenant who vacates after the issuance of this order, such
retroactive rents by that vacating tenant are due immediately.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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