ADM. REVIEW DOCKET NO.: FL430246RO
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.: FL430246RO
122-126 SAINT MARK'S PLACE ASSOCIATES DISTRICT RENT
C/O LOUIS J. DEVITO ADMINISTRATOR'S DOCKET
NO.: EJ420109BO
(DJ422292BR)
PETITIONER
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ORDER AND OPINION GRANTING 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 126 St. Mark's Place, Apts. 4, 12A, 14 & 5,
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, EJ420109BO was
issued on December 6, 1991. In that order, the Administrator
affirmed the finding of DJ422292BR, 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 asserts, as it did below that it has
cleared a sufficient number of violations. The owner has submitted
as proof of its contention along with various repairmen's bills,
copies of checks, and tenants' signed acknowledgements of repairs;
a Violation Status Report (VSR) indicating that sufficient
violations have been cleared at the subject premises to gain the
owner eligibility to raise MBRs at the subject premises.
The Commissioner is of the opinion that this petition should
be granted.
ADM. REVIEW DOCKET NO.: FL430246RO
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, inter alia 80% of the non rent-impairing
violations outstanding against the subject premises have been
cleared.
An examination of the record reveals a List of Pending
Violations (LPV), said LPV indicating that there were no rent-
impairing and 21 non rent-impairing violations outstanding at the
subject premises. The owner thus had the duty to clear at least 17
(21 X 80% = 16.8) of those violations from the subject premises in
order to raise MBRs for 1990/91. The above-mentioned VSR noted
that 15 of the violations had been cleared, and that two more were
assigned the status 'A', indicating that the inspector was unable
to gain access to the one apartment in which both these violations
were reported. As a matter of DHCR policy and procedure such
denials of access are regarded as clearance. The Commissioner
further notes that both of the violations were, by their nature
limited in their effect to the occupant(s) of the apartment.
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. The owner is
hereby found eligible to raise 1990/91 MBRs at the subject
premises, said MBR increase retroactive to January 1, 1990. All
subsequent MBRs granted to the owner for the subject premises are
hereby modified accordingly. The tenants are hereby directed to
refund to the owner any rent thereby withheld from the owner, over
a period not to exceed sixty (60) months.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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