ADM. REVIEW DOCKET NO. HE420110RT
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. HE420110RT
DISTRICT RENT
TOM ETTINGER, ADMINISTRATOR'S DOCKET
NO. EE420090F
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 14, 1993, the above-named tenant filed a petition for
administrative review of an order issued on April 9, 1993 by a Rent
Administrator concerning the housing accommodation known as
Apartment 11G, 420 Riverside Drive, New York, New York.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issues raised by the petition for administrative
review.
On March 26, 1990, the subject landlord filed with the rent
agency a Fuel Cost Adjustment Report, under Docket No. EC422456FC,
in order to qualify for an increase in the fuel cost adjustment
effective January 1, 1990.
On May 22,1990, the subject tenant filed with the rent agency
a challenge to the aforementioned Fuel Cost Adjustment Report for
1990.
On April 9, 1993, the Administrator issued the order under
review herein which denied the tenant's challenge. The
Administrator's order stated that: "Tenant challenges the lack of
essential services. In connection with the tenant's challenge of
landlord's Fuel Cost Adjustment Report for the year 1990, an
examination of our records reveal no rent reduction for heat and/or
hot water. The tenant's challenge is denied."
ADM. REVIEW DOCKET NO. HE420110RT
In his petition, the subject tenant asserts, among other
things, that the subject landlord is not entitled to an increase in
fuel cost adjustments; that the subject building has numerous rent
impairing violations; that the Administrator issued an order
suspending fuel cost adjustments for 1989, under Docket No.
DD424216FR; that the order issued under Docket No. DD424216FR
directed the landlord to refund or credit to the tenants any fuel
adjustments paid between January 1, 1989 and December 31, 1989;
that the subject landlord did not refund or credit to the tenants
fuel adjustments paid during 1989; that granting the increase in
fuel cost adjustments would be a hardship to the elderly tenants;
that the "landlords are not entitled to any cumulative fuel
increase because of substantial decreases of required essential
services," and that it was improper for the Administrator to have
increased the fuel cost adjustments retroactively.
To his petition, the subject tenant attaches, among other
things, a copy of a list of numerous building violations reported
by the tenants against the subject building.
After careful consideration, the Commissioner finds that the
tenant's petition should be denied.
Pursuant to Sections 2202.13(b)(3) and 2202.13(h) of the City
Rent and Eviction Regulations and Policy Statement 91-3, the
Commissioner notes that a landlord is barred from collecting
increases for fuel cost adjustments when there is a rent reduction
order in effect for failing to maintain an essential service. If
the service in question is heat and/or hot water, the landlord can
not collect an increase for fuel cost adjustments until twelve
months after the effective date of an order restoring the rent.
The record reflects that on January 1, 1990, the effective
date of the increase in fuel cost adjustments in this proceeding,
there was no rent reduction order in effect for failing to maintain
an essential service in the subject building or apartment. Nor had
a rent reduction for failure to maintain adequate heat or hot water
been restored within twelve months of January 1, 1990.
The Commissioner finds that the subject tenant has not
substantiated his allegations that the landlord is not eligible for
a fuel cost adjustment for 1990.
As to the tenant's assertion that the landlord is not eligible
for an increase in the fuel cost adjustment as the subject building
contains numerous rent impairing violations, the Commissioner finds
that that assertion is without merit. The removal of rent
impairing violations, which are on record with the New York City
Department of Housing Preservation and Development-Division of Code
Enforcement, is one of the pre-requisites of the rent agency in
ADM. REVIEW DOCKET NO. HE420110RT
granting the landlord maximum base rent increases, pursuant to
Section 2202.3(h) of the City Rent and Eviction Regulations;
however, the aforementioned violation removal requirements are not
a pre-requisite of the rent agency in granting the landlord an
increase in the fuel cost adjustment.
As to the subject tenant's assertion that it was improper for
the Administrator to have increased the fuel cost adjustments
retroactively, the Commissioner points out that that assertion is
without merit. The record reflects that the subject landlord has
met the filing requirements of Section 2202.13 of the City Rent and
Eviction Regulations to qualify for a fuel cost adjustment for
1990. Section 2202.13(e) of the above-mentioned regulations state
that:
If the report is served and filed within 60
days of the date of promulgation of the
findings of fuel price increase and
standards of consumption by the Division of
Housing and Community Renewal, the rent
adjustment shall be retroactive to and shall
become effective as of January first of the
calendar year in which the report is filed.
As to the tenant's assertion that the increase in the fuel
cost adjustment would be a hardship to elderly tenants, the
Commissioner finds that that assertion does not raise any issues
which would warrant the revocation of the Administrator's order
under review herein. The Commissioner notes that tenants who have
obtained a Senior Citizen Rent Increase Exemption prior to January
1, 1990, pursuant to Section 2202.20(a) of the City Rent and
Eviction Regulations, are exempt from having to pay rent increases
due to fuel cost adjustments for 1990.
As to the tenant's assertion that the landlord has not
refunded or credited to the tenants any fuel adjustments paid
during 1989, pursuant to Docket No. DD424216FR, the Commissioner
finds that the tenants remedy is to file an update request with the
rent agency for a determination of the tenant's rent, or the tenant
may seek relief in a court of competent jurisdiction.
THEREFORE, in accordance with the City Rent and Rehabilitation
Law and the Rent and Eviction Regulations, it is
ORDERED, that this petition be, and the same hereby is,
ADM. REVIEW DOCKET NO. HE420110RT
denied, and that the Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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