ADM. REVIEW DOCKET NO.: FI420261RO
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.: FI420261RO
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: EJ420114BO
LUCILLE BIRNKAMMER (DJ420940BR)
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 1041 Madison Avenue, apartment 3F, 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, EJ420114BO was
issued on August 23, 1991. In that order, the Administrator
affirmed the finding of DJ420940BR, issued September 20, 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. Specifically, the Administrator found that
"Inspection at premises conducted August 14, 1991 and August 15,
1991 found criteria not met."
On appeal the owner contends that she "was not informed at the
time (the above-mentioned inspections were) supposedly conducted."
The owner also submits various documentation proving that various
violations were cleared. The owner additionally submits a copy of
a letter apparently first submitted to the Administrator at the
Challenge level of the instant proceeding, in which letter the
ADM. REVIEW DOCKET NO.: FI420261RO
owner alleges that she received eligibility to raise MBRs at the
subject premises for the previous (1988/89) MBR Cycle. The owner
then notes the age of the violations (they were first reported in
1986 or 1983).
The Commissioner is of the opinion that this petition should
be denied.
The Commissioner is of the opinion that violations reported as
cleared for the purposes at gaining the owner eligibility for
1988/89 MBR increases at the subject premises may have reoccurred.
In any case, the issue before the Commissioner is whether the
Administrator was correct in denying the owner eligibility to raise
MBRs at the subject premises for the 1990/91 cycle, not whether the
Administrator was correct in granting the identical owner
eligibility to raise MBRs at the identical premises for the 1988/89
cycle.
A List of Pending Violations discloses that there were of
record against the subject premises one rent-impairing and nine non
rent-impairing violations. Pursuant to Section 2202.3(h) of the
New York State Rent and Eviction Regulations, in order to gain
eligibility to raise MBRs at the subject premises for 1990/91 the
owner had to certify to the Administrator that the one rent-
impairing violation and 80% (seven) of the non rent-impairing
violations had been cleared from the subject premises.
Pursuant to the owner's request at Challenge, on July 29, 1991
a DHCR inspector made an appointment with the owner to inspect the
subject premises on August 14 and 15, 1991. Upon his inspection of
the subject premises the inspector noted that of the nine non rent-
impairing violations four had been cleared, and two were located in
an apartment to which the inspector was denied access. In his
report, the inspector stated that he was unable to determine
whether the three remaining non rent-impairing violations (as well
as the one rent -impairing violation) had been cleared because he
was denied access to the sites of these violations (all in public
areas) by the superintendent of the premises. As the inspector
noted in his report: "No response from superintendent who knew I
was on the premises (emphasis added) to gain access to the
building." The inspector noted that he was thus denied access on
both inspection dates.
The Commissioner notes that the owner specifically requested
the DHCR inspection, and was informed of the dates of the
inspection, and consented to those dates.
The Commissioner notes that, per DHCR procedure, if an
inspector is denied access to an apartment, the Administrator will
ADM. REVIEW DOCKET NO.: FI420261RO
generally consider any violations located within that apartment as
cleared, in order to avoid prejudicing the rights of the owner in
her attempt to gain eligibility to raise MBRs at the subject
premises.
In the instant proceeding however, the DHCR inspector was
denied access to violations located in public areas. This lack of
access is due to the owner's failure to notify her agent (the
superintendent) that a DHCR inspection would occur that day. The
Commissioner is thus of the opinion that the owner would not be
prejudiced if the three non rent-impairing and one rent-impairing
violation to which the DHCR was thus denied access are regarded as
outstanding.
The Commissioner notes that, considering the above the owner
has failed to remove a requisite number of rent-impairing as well
as non rent-impairing violations from the subject premises.
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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