ADM. REVIEW DOCKET NOS.: FL530266RO, FG520467RT
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 NOS.: FL530266RO,
FG520467RT
DISTRICT RENT
TYVAN HILL CO.-OWNER ADMINISTRATOR'S DOCKET
OTTO REISMAN-TENANT NO.: DG520433BO(BL428169BR)
PETITIONERS
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely petition for
administrative review under docket # FL530266RO of an order issued
concerning the housing accommodations known as 452 Ft. Washington
Avenue, apartment 47 et al., 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, DG520433BO was
issued on October 31, 1991. In that order, the Administrator
revoked the finding of BL428169BR, issued June 22, 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. The proceeding under DG520433BO was commenced on
July 25, 1989 when the owner served the Administrator with a
Challenge of BL428169BR.
In addition to its finding that the owner had certified to
sufficient violation clearance in order to earn eligibility to
raise 1988/89 MBRs at the subject premises , an examination of the
record reveals the following information about Administrator's
order # DG520433BO: The effective date of the order is January 1,
1988. The order states on its face that "....no MBR order was
issued for 1990-91. This order...applies to the 1988-89 cycle
ADM. REVIEW DOCKET NOS.: FL530266RO, FG520467RT
only (A previous order issued on April 26, 1991 under the
identical docket number stated that the owner was eligible for
1990/91 MBR rent increases at the subject premises. The effective
date of that order was January 1, 1990.) The order also stated on
its face: "This order corrects and supersedes the order of
eligibility issued April 26, 1991." (apparently, the Administrator
inadvertently on April 26, 1991 issued the order on a "1990/91 MBR
order of eligibility" form).
On appeal, the owner contends that the Administrator was in
error in stating in the "corrected order" that no MBR order for
1990-91 was issued. The owner attaches a copy of the April 26,
1991 order as proof of its contention.
The above-captioned petitioner-tenant (tenant), a rent-
controlled tenant at the subject premises, timely filed an appeal
under docket # FG520467RT of the identical Administrator's order.
On appeal the tenant contends that, inasmuch as there is an
outstanding Administrator's order (issued on April 20, 1988 under
docket # BH420062S) reducing rent at the tenant's above-mentioned
apartment the owner should thus be barred from increasing 1988/89
MBRs for the tenant's apartment. The owner additionally alleges
that a court "stipulation" issued under the docket # L & T
122793/90 restricts the owner of the subject premises from raising
the rent at the tenant's apartment until 1991.
The Commissioner is of the opinion that these petitions should
be denied.
An examination of the record reveals the following:
In the instant proceeding, the owner filed a Violation
Certification (VC) and Operation & Maintenance & Essential Services
Certification (O & M) for the 1988/89 cycle. There is no evidence
in the file that the owner at that time filed a VC or an O & M for
the 1990/91 cycle.
Discussions with the DHCR staff disclose that an "Order of
Eligibility-Maximum Base Rent 1990-91" was mistakenly mailed to the
owner on April 26, 1991. As noted above, the order was reissued on
October 31, 1991, in which order the Administrator explicitly
stated that the April 26, 1991 order was thereby overruled.
The Commissioner is of the opinion that the use of the phrase
"corrected order" in the owner's appeal suggests that the owner was
ADM. REVIEW DOCKET NOS.: FL530266RO, FG520467RT
fully aware that the April 26, 1991 order was explicitly revoked by
the October 31, 1991 order. Any attempt by the owner to argue
otherwise is, in the Commissioner's opinion disingenuous.
The Commissioner notes that the owner was given permission to
raise MBRs at the subject premises for 1988/89, effective the first
day of the 1988/89 cycle. The Commissioner is therefore of the
opinion that the owner's interest was in no way prejudiced by the
Administrator's finding.
As for the tenant's contentions upon appeal:
As noted above, the rent reduction order was issued on April
20, 1988, and the Administrator granted the owner eligibility to
raise MBRs for 1988/89 at the subject premises effective January 1,
1988. As such, the Commissioner is of the opinion that the rent
reduction order was issued subsequent to the order of eligibility.
The Commissioner notes that to find that the rent reduction order
served to exempt the tenant's apartment from 1988/89 MBR increases
would give retroactive force to the rent reduction order. The
Commissioner is of the opinion that the rent reduction order,
issued on April 20, 1988 serves to exempt the tenant's apartment
from future orders increasing rent (i.e., those orders issued and
effective after April 20, 1988), subject to the elimination of the
service reduction inside the apartment.
The tenant did not submit any documentary evidence (such as a
copy of a signed court order) of the court decision he cites on
appeal. The Commissioner thus cannot consider the evidence
presented by the owner on appeal.
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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