Docket No. IF120018RP(BK130362RO)
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. 7227
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. IF120018RP
(BK130362RO)
DISTRICT RENT
SKILLMAN QUEENS ADMINISTRATOR'S DOCKET
REALTY COMPANY, NO. 7MBC000117Q(7MI02351Q)
PETITIONER
------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
The above-named landlord filed a petition for administrative
review of an order issued by the Rent Administrator concerning
various housing accommodations in the premises known as 43-34 49th
Street, Sunnyside, New York.
On September 24, 1993, the Commissioner issued an order and
opinion issued under Docket No. BK130362RO which denied the
landlord's petition.
Subsequently, the landlord commenced a proceeding in the
Supreme Court of the State of New York-Queens County pursuant to
Article 78 of the Civil Practice Law and Rules, seeking review of
the above-mentioned Commissioner's order.
After considering the Article 78 petition, the Court issued an
order remitting the proceeding to the New York State Division of
Housing and Community Renewal (D.H.C.R.) for further consideration.
The rent agency redocketed the proceeding under the above-
referenced docket number, IF120018RP.
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 Administrator issued an "Interim Order" on September 18,
1986 which granted the landlord maximum base rent (M.B.R.)
increases for the 1986-1987 period effective January 1, 1986. The
Administrator issued an order on August 7, 1987 under Docket No.
Docket No. IF120018RP(BK130362RO)
7MI02351Q which denied the landlord M.B.R. increases for the 1986-
1987 period as it was determined that the landlord has not cleared
the requisite number of violations pending against the subject
building.
On September 4, 1987, the subject landlord filed a challenge
to the above-mentioned order.
In the order under review herein issued on October 2, 1987
under Docket No. 7MBC000117Q17Q(7MI02351Q), the Administrator denied
the landlord's challenge and affirmed the aforementioned order
issued under Docket No. 7MI02351Q.
In the landlord's petition it asserts, among other things,
that on January 1, 1985 there were six violations pending against
the subject building on record with the New York City Department of
Housing Preservation and Development (H.P.D.); that all six
violations were timely cured; that two of the violations pertain to
broken or defective windows located in apartment 6A; that the
tenant of the above-mentioned apartment filed a complaint with the
New York City Conciliation And Appeals Board (C.A.B), the agency
formerly charged with enforcement of the Rent Stabilization Law
prior to April 1, 1984; in the complaint, the tenant alleged that
the windows in the above-mentioned apartment were defective; that,
the landlord asserts, the windows were repaired; that an inspection
report issued by H.P.D. pertaining to the windows in apartment 6A
"found no cause for complaint," and that D.H.C.R. issued a letter,
dated April 16, 1984, "indicating that no violations existed in the
Apartment."
To its petition the landlord attaches, among other things, a
copy of the above-mentioned tenant's complaint filed with the
C.A.B. dated January 24, 1984; a copy of the above-mentioned H.P.D.
inspection report dated April 3, 1984, and a copy of the above-
mentioned letter issued by the D.H.C.R. on April 16, 1984.
After careful consideration, the Commissioner finds that the
landlord's petition should be granted.
It should be noted that in the above-mentioned order issued on
September 24, 1993 under Docket No. BK130362RO, the Commissioner
had determined that there were six non-rent impairing violations on
record with the H.P.D.; that, pursuant to the applicable rent
regulations, to qualify for an M.B.R. increase for the 1986-1987
period the landlord had to clear at least five of the six pending
violations on record with the H.P.D.; that the subject landlord had
cleared only four of the six violations; that the violations that
were not cleared pertained to the windows inside Apartment 6A, and
that the landlord had not cleared the requisite number of
violations to qualify for an M.B.R. increase for the 1986-1987
period.
Docket No. IF120018RP(BK130362RO)
The record reflects that the subject landlord submitted a
violation certification form, dated June 7, 1985, for the 1986-1987
M.B.R. cycle.
The record further reflects that the H.P.D.-Office of Rent and
Housing Maintenance conducted an inspection of the subject building
on April 14, 1986 which noted that the two non-rent impairing
violations relating to the windows in apartment 6A were not
corrected.
The Commissioner points out that in the aforementioned order
issued by the Supreme Court, which remitted this proceeding to the
D.H.C.R., the Judge stated, among other things, that: "Any
inspections subsequent to the certification date are to be
disregarded." (Emphasis by the Court.)
As the inspection conducted on April 14, 1986 by the H.P.D.-
Office of Rent and Housing Maintenance occurred after the
certification date of June 7, 1985, the Commissioner finds that,
pursuant to the above-mentioned Court order, that inspection is not
relevant as to the issues raised in this proceeding.
The Commissioner points out that the aforementioned inspection
report dated April 3, 1984, and the letter issued by the D.H.C.R.
on April 16, 1984, both noted that the tenant's assertions in the
complaint filed with the C.A.B. pertaining to the windows in
Apartment 6A were not warranted.
As it is the law of the case that inspections occurring after
the certification date are to be"disregarded" in determining the
issues in this proceeding; and the letter issued by the D.H.C.R. on
April 16, 1984 determined that there were no violations in
Apartment 6A, the Commissioner finds, pursuant to the directives of
the aforementioned court order, that the two violations on record
with the H.P.D. pertaining to the windows in Apartment 6A were
timely cleared.
Accordingly, the Commissioner finds that the subject landlord
has met the requisite requirements to qualify for M.B.R. increases
for the 1986-1987 period effective January 1, 1986, pursuant to the
applicable rent regulations.
The Commissioner further finds that the Administrator's order
issued on October 2, 1987 under Docket No. 7MBC000117Q(7MI02351Q)
should be revoked; and that the M.B.R. and maximum rent increases
should be calculated pursuant to the directives in the
aforementioned interim M.B.R. order of eligibility issued on
September 18, 1986.
THEREFORE, in accordance with the City Rent and Rehabilitation
Law and Rent and Eviction Regulations, it is
Docket No. IF120018RP(BK130362RO)
ORDERED, that the landlord's petition be, and the same hereby
is, granted, and that the Administrator's order, issued under
Docket No. 7MBC000117Q(7MI02351Q), be, and the same hereby is,
revoked; and it is
FURTHER ORDERED, that the subject landlord has qualified for
M.B.R. increases for the 1986-1987 period effective January 1,
1986; and it is
FURTHER ORDERED, that the maximum rent and M.B.R. increases
shall be calculated pursuant to the directives in the interim
M.B.R. order of eligibility issued on September 18, 1986; and it is
FURTHER ORDERED, that the subject tenants may pay any
retroactive rent arising as a result of this order in one or more
lump sum payments or, at the tenants' option, in equal monthly
installments equal in number to the number of months between
January 1, 1986 and the issuance date of this order, and it is
FURTHER ORDERED, that if a subject tenant vacates after the
issuance of this order that tenant's retroactive rent shall be due
immediately.
ISSUED:
Joseph A. D'Agosta
Deputy Commissioner
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