STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : S.J.R. NO. 7078
APPEAL OF ADMINISTRATIVE REVIEW
: DOCKET NO. IA120003RP
STUART HOUSE, DISTRICT RENT ADMINISTRATOR'S
: DOCKET NO. EC120002BO
ORDER AND OPINION REMANDING PROCEEDING TO THE RENT ADMINISTRATOR
On October 10, 1990, the above-named landlord filed a petition for
administrative review of an order issued on September 12, 1990 by a Rent
Administrator concerning various housing accommodations known as 36-35 167th
Street, Flushing, 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.
The Commissioner issued an order and opinion on June 8, 1993 under Docket
No. EJ130057RO which denied the subject landlord's petition. Subsequently,
the landlord commenced a proceeding in the Supreme Court of the State of New
York pursuant to Article 78 of the Civil Practice Law and Rules (C.P.L.R.),
seeking review of the above-mentioned Commissioner's order of June 8, 1993.
By order dated December 16, 1993, the Supreme Court, Queens County, remanded
the matter to the rent agency for further processing.
The Division of Housing and Community Renewal (D.H.C.R.) issued an order on
March 2, 1990 under Docket No. DL122961BR which granted the landlord maximum
base rent (M.B.R.) increases for the 1990-1991 period effective on January
The above-mentioned order noted that there was an M.B.R. factor of 8% for
the 1990-1991 period.
In the landlord's challenge it alleged, among other things, that it objects
to the "8% MBR factor" established in the above-mentioned order, and that as
the subject building has no commercial income the building's M.B.R. factor
should have been calculated on an individual basis.
DOCKET NO.: IA120003RP
In the order under review herein issued on September 12, 1990 under Docket
No. EC120002BO, the Administrator denied the landlord's challenge to the
aforementioned M.B.R. order of eligibility. The Administrator determined
that the proposed M.B.R. factor was "presented at public hearings"; that at
the public hearings all interested parties were given an opportunity to
comment on the proposed M.B.R. factor, and that "such comment were taken
into consideration" prior to the approval of the M.B.R. factor.
In its petition the subject landlord, among other things, reiterates the
issues that were raised in its challenge to the aforementioned M.B.R. order
After careful consideration, the Commissioner finds that the proceeding
should be remanded to the Rent Administrator.
The Commissioner points out that calculating the M.B.R. factor based upon a
city-wide statistical average is a long established policy followed by the
D.H.C.R. and its predecessor agency in administrating the various statutes
providing for the regulation of housing. The Commissioner is of the
opinion, based upon several court cases, that the courts have approved the
above-mentioned policy of the rent agency.
However, when a party can prove that calculating their building's M.B.R.
factor based upon a city-wide statistical average would lead to an
inequitable result, the Commissioner finds that the rent agency may
calculate that building's M.B.R. factor individually.
Based upon the record, the Commissioner is of the opinion that the subject
landlord has met its burden of proof in showing that calculating the subject
building's 1990-1991 M.B.R. factor based upon a city-wide statistical
average would lead to an inequitable result as to its 1990-1991 M.B.R.
Accordingly, the Commissioner finds that calculating the subject building's
1990-1991 M.B.R. factor individually is warranted in this proceeding.
The Commissioner finds that this proceeding is being remanded to the Rent
Administrator for the ministerial act of obtaining the necessary data to
calculate the subject building's 1990-1991 M.B.R. factor, and to calculate
the above-mentioned M.B.R. factor individually.
THEREFORE, in accordance with the City Rent and Rehabilitation Law and the
Rent and Eviction Regulations, it is
ORDERED, that this proceeding be, and the same hereby is, remanded to the
Rent Administrator for the ministerial act of calculating the subject
building's 1990-1991 M.B.R. factor on an individual basis; and it is
FURTHER ORDERED, that the Administrator's order issued under Docket No.
EC120002BO, be, and the same hereby is, revoked, and it is
DOCKET NO.: IA120003RP
FURTHER ORDERED, that the subject building's 1990-1991 M.B.R. factor of 8%
remains in full force and effect until a new order is issued upon remand.
JOSEPH A. D'AGOSTA