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
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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
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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 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
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