ADM. REVIEW DOCKET NO. HG420092RO
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 S.J.R. No. 7251
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. HG420092RO
GODFREY BLOCH, AS DISTRICT RENT
EXECUTOR OF THE ESTATE OF ADMINISTRATOR'S DOCKET
ELSIE COULSON BLOCH, NO. FB420181R
PETITIONER
------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
PART
On July 16, 1993, the above-named landlord filed a petition
for administrative review of an order issued on June 18, 1993 by
the Rent Administrator concerning the housing accommodation known
as Apartment 3B, 38 East 75th Street, New York, New York.
Subsequently, and after more than ninety days had elapsed from
the time he filed his petition for administrative review, the
landlord deemed his petition as having been denied, and sought
judicial review in the Supreme Court of the State of New York
pursuant to Article 78 of the Civil Practice Law and Rules.
After considering the Article 78 petition, the court approved
a stipulation remitting the proceeding to the New York State
Division of Housing and Community Renewal (D.H.C.R.) for further
consideration.
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 for review.
On February 14,1991, the subject tenant filed an overcharge
complaint. In his complaint the subject tenant noted that his
apartment was rent controlled.
The subject tenant commenced occupancy in 1967.
In the order under review herein, the Administrator determined
that the subject apartment's maximum rents were as follows:
ADM. REVIEW DOCKET NO. HG420092RO
Maximum Rent Effective Date
$131.83 per month January 1, 1988
$141.72 per month January 1, 1989
$152.35 per month January 1, 1990
$163.78 per month January 1, 1991
$176.06 per month January 1, 1992
$189.26 per month January 1, 1993
In his petition and supplementary submissions the subject
landlord asserts, among other things, that in calculating the
subject apartment's maximum rents the Administrator did not take
into account the Commissioner's order issued on July 18, 1985 under
Docket No. CPLA36237, which established that the subject
apartment's maximum rent effective October 1, 1962 should be
$135.00 per month; that the landlord's first maximum base rent
(M.B.R.) order of eligibility was effective on May 1,1986, and that
based upon subsequent M.B.R. orders of eligibility the subject
apartment's maximum rent effective January 1, 1993 should be
$240.77 per month.
In his various responses the subject tenant asserts, among
other things, that he objects to the order granting the landlord
M.B.R. increases for the 1986-1987 period; that the aforementioned
Commissioner's order issued on July 18, 1985 is not relevant to
this proceeding as it pertains to the subject apartment's rent
prior to the subject landlord entering the M.B.R. system; that the
subject landlord is not eligible to collect further rent increases
as, the tenant alleges, the landlord is in arrears in the payment
of annual fees pursuant to Section 26-517.1 of the Rent
Stabilization Law, and that the tenant asserts that he is a senior
citizen living on social security benefits and an Army disability
pension.
After careful consideration, the Commissioner finds that the
landlord's petition should be granted in part.
The record reflects that the aforementioned Commissioner's
order issued on July 18, 1985 under Docket No. CPLA36237 was not
appealed, nor was it revoked by a subsequent order issued by the
rent agency.
The Commissioner finds that the order issued under Docket No.
CPLA36237 is a final determination of the rent agency.
Pursuant to the above-mentioned order, the Commissioner finds
that the subject apartment's maximum rent effective October 1, 1962
should be $135.00 per month.
As to the tenant's objections to the order issued under Docket
No. CPLA36237, the Commissioner finds that those objections are an
ADM. REVIEW DOCKET NO. HG420092RO
impermissible collateral attack on a final determination of the
rent agency.
The Commissioner notes that in an order issued on June 1, 1993
under Docket No. HB420007RP, the Administrator granted the subject
landlord M.B.R. increases for the 1986-1987 period effective
September 1, 1987. In the above-mentioned order, the Commissioner
notes that the M.B.R. for the various apartments contained in the
subject premises were calculated.
The record reflects that the above-mentioned order was not
appealed. Accordingly, the Commissioner finds that the order
issued under Docket No. HB420007RP is a final determination of the
rent agency.
As to the tenant's objections to the 1986-1987 M.B.R. order of
eligibility, the Commissioner finds that those objections are an
impermissible collateral attack on a final determination of the
rent agency.
Based upon the record, the Commissioner finds that the
landlord's first M.B.R. order of eligibility was for the 1986-1987
period. As the effective date for the 1986-1987 M.B.R. order of
eligibility was September 1, 1987, the Commissioner finds that the
subject apartment's maximum rent effective September 1, 1987 should
be $145.13 per month ($135.00 X 7.5%).
Based upon the record, the Commissioner finds that the rent
agency issued several orders granting the landlord M.B.R. increases
for the 1988-1989, 1990-1991, and 1992-1993 biennial cycles.
The Commissioner finds, based upon the record, that the
aforementioned M.B.R. orders of eligibility were not appealed.
Accordingly, the Commissioner finds that the aforementioned M.B.R.
orders of eligibility are final determinations of the rent agency.
The Commissioner finds that the tenant's objections to the
aforementioned M.B.R. orders of eligibility are an impermissible
collateral attack on final determinations of the rent agency.
As to the issue raised by the tenant pertaining to annual fees
pursuant to Section 26-517.1 of the Rent Stabilization Law, the
Commissioner finds that that issue only pertains to rent stabilized
housing accommodations; and as the subject apartment is rent
controlled that issue is irrelevant in this proceeding.
Based upon the above-mentioned facts, the Commissioner finds
that the maximum rents noted in the Administrator's order under
review herein should be modified as follows:
ADM. REVIEW DOCKET NO. HG420092RO
Maximum Rent Effective Date
$156.01 per month January 1, 1988
$167.71 per month January 1, 1989
$180.29 per month January 1, 1990
$193.81 per month January 1, 1991
$208.35 per month January 1, 1992
$223.97 per month January 1, 1993
The Commissioner notes that the above-mentioned rents do not
include any fuel cost adjustments the subject landlord may be
entitled to collect.
As to the tenant's assertion that he is a senior citizen
living on social security, the Commissioner finds that that fact
does not bar the landlord from collecting increases in the maximum
rent pursuant to the applicable orders granting the landlord M.B.R.
increases. The Commissioner points out that if it is a financial
hardship for the subject tenant to pay his rent his remedy is to
apply for a Senior Citizen Rent Income Exemption (S.C.R.I.E.) with
the applicable City agency.
THEREFORE, in accordance with the City Rent and Rehabilitation
Law and Rent and Eviction Regulations, it is
ORDERED, that the landlord's petition be, and the same hereby
is, granted in part, and that the Administrator's order, issued
under Docket No. FB420181R, be, and the same hereby is, modified in
accordance with order and opinion; and it is
FURTHER ORDERED, that the subject apartment's maximum rent
shall be as follows: $156.01 per month effective January 1, 1988,
$167.71 per month effective January 1, 1989, $180.29 per month
effective January 1, 1990, $193.81 per month effective January 1,
1991, $208.35 per month effective January 1, 1992, and $223.97 per
month effective January 1, 1993; and it is
FURTHER ORDERED, that the subject tenant may pay any
retroactive rent arising as a result of this order in one or more
lump sum payments or, at the tenant's option, in equal monthly
installments equal in number to the number of months between
January 1, 1988 and the date of issuance of this order, and it is
FURTHER ORDERED, that if the subject tenant vacates after the
issuance of this order, such retroactive rents, if any, shall be
due immediately.
ISSUED:
ADM. REVIEW DOCKET NO. HG420092RO
JOSEPH A. D'AGOSTA
Deputy Commissioner
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