ADM. REVIEW DOCKET NO.: FK420464RT
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.: FK420464RT
DISTRICT RENT
ARLENE BRANDON ADMINISTRATOR'S DOCKET
C/O DAVID ROZENHOLC NO.: DL420004BO
(BL428225BR)
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW AND
REVOKING ADMINISTRATOR'S ORDER IN PART
The above-named tenant filed a timely petition for
administrative review of an order issued concerning the housing
accommodations known as 255 West 88th Street, Apt. 7E, 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, DL420004BO was
issued on September 27, 1991. In that order, the Administrator
revoked the finding of BL428225BR issued December 1, 1989, that the
owner be denied eligibility for a 1988/89 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.
Relying on evidence the owner submitted at Challenge, the
Administrator determined that, contrary to the Administrator's
finding below the owner had timely cleared the requisite number of
violations from the subject premises, thus gaining the owner
eligibility to raise MBRs at the subject premises for 1988/89.
Among this evidence was evidence submitted by the owner as to
clearance of two specific violations, as well as evidence submitted
by the owner in the form of an Affidavit from the superintendent of
the subject premises, in which Affidavit the affiant testifies to
ADM. REVIEW DOCKET NO.: FK420464RT
the clearance of various violations, said Affidavit dated May 30,
1991. The Administrator additionally relied on the report of a
DHCR inspector who inspected the subject premises on September 11,
1991. The inspector used a copy of a New York City Department of
Housing Preservation and Development (HPD) report of an HPD
inspection of the subject premises made on June 4, 1991 as
reference as to which violations were to be inspected.
On appeal the tenant states that "Landlord has not corrected
any violations that I have observed."
The Commissioner is of the opinion that this petition should
be granted.
Pursuant to Section 2202.3(h) of the New York City Rent and
Eviction Regulations an owner, in order to gain eligibility to
raise MBRs at a given premises, for a given cycle must certify to
the Administrator that, by six months before the effective date of
the eligibility order all rent-impairing and 80% of all non rent-
impairing violations of record at the subject premises one year
before the effective date have been removed.
In the instant proceeding the owner had the duty to certify to
the Administrator that, by July 1, 1987 all rent-impairing and 80%
of the non rent-impairing violations of record at the subject
premises as of January 1, 1987 had been cleared. A List of Pending
Violations (LPV) discloses that as of January 1, 1987 there were
one rent-impairing and 11 non rent-impairing violations against the
subject premises. Thus, the owner had the duty to certify to the
removal of the one rent-impairing violation as well as nine (11 X
80% = 8.8) of the non rent-impairing violations.
An examination of the record reveals that most of the evidence
the Administrator relied on in granting the owner eligibility (the
Affidavit and the DHCR inspection) is dated 1991. The Commissioner
is thus of the opinion that this evidence is at the most,
indicative that the violations were cleared in 1991-four years
after the July 1, 1987 "deadline" (the June 4, 1991 HPD inspection
relied on by the DHCR inspector discloses that, of all the
violations listed on the LPV, only one non-rent impairing violation
had been cleared by the date of the HPD inspection).
The Commissioner additionally notes that the HPD inspection
discloses that the one rent-impairing violation of record at the
subject premises had not been cleared, despite additional evidence
submitted by the owner below attesting to its clearance.
ADM. REVIEW DOCKET NO.: FK420464RT
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, granted and that the order of the Rent
Administrator be, and the same hereby is, revoked in part, to the
extent that the Commissioner finds that the owner is not eligible
for 1988/89 MBR increases from the petitioner-tenant only. No
other tenants at the subject premises are affected by this order.
The owner is directed to adjust any and all subsequent MBR
increases accordingly, and to serve the petitioner-tenant and the
Administrator with any amended form(s) informing them of such
adjustments. The owner is directed to refund to the tenant any and
all excess rent collected pursuant to DL420004BO over a period not
to exceed thirty (30) days.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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