ADM. REVIEW DOCKET NO.: FG430125RO
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.: FG430125RO
SCHARFMAN ORGANIZATION
C/O ROSENBERG & ESTIS P.C. DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: EI420224BO
(DK423698BR)
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 251 West 81st Street, 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, EI420224BO was
issued on May 31, 1991. In that order, the Administrator affirmed
the finding of DK423698BR 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.
(In response to the owner's assertion at Challenge below that
a requisite number of violations at the subject premises had been
removed, the Administrator ordered a D.H.C.R. inspection of the
subject premises. That inspection disclosed that various
violations had not been removed, and served as the basis for the
Administrator's decision in EI420224BO).
ADM. REVIEW DOCKET NO.: FG430125RO
On appeal, the owner reiterates the arguments it made at
Challenge and includes various documentary evidence, including a
copy of a report of inspections of the subject premises performed
on August 27 and August 29, 1989 by the New York City Department of
Housing Preservation and Development (HPD) as well as a letter from
a licensed architect. The HPD report submitted by the owner is a
copy of the HPD inspection report relied on by the Administrator in
denying the owner eligibility under Docket # DK423698BR.
The owner argues on appeal that the List of Pending violations
(LPV) found a total of eight non rent impairing violations of
record at the subject premises. The owner further argues that the
HPD inspection revealed that four of those violations had been
removed.
The owner additionally argues that, of the four remaining non
rent-impairing violations three of them are of a "recurring" nature
and/or are "tenant induced," and thus cannot be used to deny
eligibility to the owner.
The architect's letter submitted by the owner on review
contains the arguments that all of the non rent impairing
violations had been repaired. This observation is based on the
architect's visit to the subject premises.
The Commissioner is of the opinion that this petition should
be denied.
What is at issue is whether evidence presented by the owner on
appeal is sufficient to overcome the Administrator's finding that
the owner should be denied eligibility, due to its failure to
remove a sufficient number of violations from the subject premises.
Section 2202.3(h) of the New York City Rent and Eviction
Regulations states that, in order to gain eligibility to raise MBRs
at a given premises for a given cycle, the owner must certify to
the Administrator that 100% of the rent-impairing and 80% of the
none rent-impairing violatins which were of record against the
premises as of one year before the effective date of the order of
eligibility were cleared by six months before the effective date.
In the instant proceeding, the LPV discloses that there were
eight non rent-impairing violations of record against the subject
ADM. REVIEW DOCKET NO.: FG430125RO
premises. Accordingly, the owner had to remove six (8 X 80% = 6.4)
of those violations in order to receive eligibility. The HPD
inspections of August 27 and 29, 1989 revealed that the owner had
failed to clear the requisite number of violatins by those dates.
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:
LULA M. ANDERSON
Deputy Commissioner
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