ADM. REVIEW DOCKET NO.: HA420106RO

                                 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


          ------------------------------------X
          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NO.: HA420106RO

                                                  DISTRICT RENT
                                                  ADMINISTRATOR'S DOCKET
            JACQ MISTERE AS MANAGING AGENT FOR    NO.: EH420100BO(DJ421432BR)
            FONTAINEBLEAU ESTATES, INC.
                                   PETITIONER
          ------------------------------------X

            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 215 East 26th 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, EH420100BO was 
          issued on December 11, 1992.  In that order, the Administrator 
          affirmed the finding of DJ421432BR, 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 claims that, contrary to the 
          Administrator's finding all violations of record against the 
          subject premises have been cleared.  The owner includes with his 
          appeal, as evidence of his claim a copy of an Affidavit from a 
          licensed Architect, said affiant stating that all violations had 
          been cleared from the subject premises, as well as a copy of a 
          signed letter from the owner himself, in which letter the owner 
          states that several of the violations had been cleared.  
















          ADM. REVIEW DOCKET NO.: HA420106RO

               The Commissioner is of the opinion that this petition should 
          be denied.

               A List of Pending Violations (LPV) discloses that, as of 
          January 1, 1989 there were a total of one rent-impairing and eight 
          non rent-impairing violations of record at the subject premises.  
          Pursuant to Section 2202.3(h) of the New York City Rent and 
          Eviction Regulations, the owner, in order to gain eligibility to 
          raise MBRs at the subject premises for 1990/91 was therefore 
          required to certify to the Administrator that the one rent- 
          impairing and at least six (80% X 8 = 6.4) of the non rent- 
          impairing violations had been cleared by July 1, 1989.

               An examination of the record reveals that on August 14, 1989 
          the New York City Department of Housing Preservation and 
          Development (HPD) inspected the subject premises. A report of the 
          HPD inspection discloses that of the violations noted on the LPV 
          two were cleared, one (#851) was waived, the inspector was denied 
          access to two more, and the rest (including the one rent-impairing 
          violation) had not been cleared by August 14, 1989.

               The Commissioner notes that the Architect's Affidavit 
          submitted by the owner on appeal is dated June 24, 1991 and reports 
          the results of an inspection conducted by the architect on June 6, 
          1991.  The Commissioner similarly notes that the owner's letter 
          submitted on appeal is dated October 25, 1988.

               The Commissioner is of the opinion that, inasmuch as the 
          Affidavit is of an inspection that took place nearly two years 
          after the July 1, 1989 "deadline", this Affidavit is at best 
          probative that violations were cleared from the subject premises in 
          an untimely manner.  Conversely, the owner's letter, purporting to 
          prove violation clearances before the commencement of the 1990/91 
          cycle is unacceptable as evidence of timely clearance of the 
          violations.  The Commissioner is of the opinion that in the time 
          period between the date of the owner's letter and July 1, 1989 
          violations ostensibly "cleared" may have recurred.

               The Commissioner notes that the above-mentioned Affidavit and 
          letter are both dated before December 11, 1992 (the issue date of 
          the Administrator's order under appeal herein).  The Commissioner 
          further notes that neither document was submitted to the 
          Administrator during earlier stages of this proceeding, but were 
          instead submitted by the owner for the first time to the 
          Commissioner on appeal.  As such, the Commissioner is of the 
          opinion that these documents may not fall under the Commissioner's 
          scope of review and may thus not be considered by the Commissioner 
          on appeal.


               The Commissioner notes that this order is determinative of the 
          owner's eligibility for MBR increases at the subject premises for 






          ADM. REVIEW DOCKET NO.: HA420106RO

          1990/91 only, and not for any previous or subsequent cycles.

               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             
               






    

TenantNet Home | TenantNet Forum | New York Tenant Information
DHCR Information | DHCR Decisions | Housing Court Decisions | New York Rent Laws
Disclaimer | Privacy Policy | Contact Us

Subscribe to our Mailing List!
Your Email      Full Name