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Bobadilla v New York State Div. of Hous. & Community Renewal 2004 NY Slip Op 30349(U) June 24, 2004 Supreme Court, Queens County Docket Number: 18077/2003 Judge: Duane A. Hart Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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Short Form Order

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Judgment

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NEW YORK SUPREME COURT Present: HONORABLE DUANE A. HART Justice

QUEENS COUNTY IA PART

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AIDA BOBADILLA
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Index Number Motion Date

18077 February 4,
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2003

2004

NEW YORK STATE DIVISION OF HOUSING AND COMMUNITY RENEWAL
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Motion Cal. Number

The following papers numbered 1 to 10 read on this application by petitioner Aida Bobadilla which seeks a judgment pursuant to CPLR article 78 reversing, annulling and setting aside the decision and order of respondent New York State Division of Housing and Community Renewal (DHCR) dated May 29, 2003, which revoked the order of November 24, 1999 granting the tenants' petitions for administrative review (PAR), and affirmed the order of the Rent Administrator (RA) determining that owner Fisher Associates (owner) was entitled to a major capital improvement (MCI) rent increase for installation of new apartment windows for the building located at 35-46 74th Street, Jackson Heights, New York, (the subject building) in which petitioner is a tenant residing in Apartment #621. Papers Numbered Notice of Petition - Petition - Exhibits . . . . . . . . . Answering Affidavits - Exhibits . . . . . . . . . . . . . . . . . . Reply Affidavits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3 4-8 9-10

Upon the foregoing papers it is ordered and adjudged that the petition is determined as follows: The owner filed an application on October 26, 1990 for an MCI increase for various work, including installation of new windows. At the time of the MCI application, two rent reduction orders for decreased building-wide services in the subject building were in effect. Rent reduction order Docket No. AJ130002B, issued on

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October 8, 1987, decreased the rent based on rodent infestation, peeling paint and plaster, and cracked windows. Rent reduction order Docket No. CJ130063B, issued on June 19, 1989, decreased the rent due to peeling paint and plaster in the windows in the public hallways, the failure of the roof doors to close securely, cracked and missing window panes in the laundry room and basement, and inoperative elevator fans. The owner filed PARs against these rent reduction orders prior to filing the MCI application. By decision and order dated March 28, 1991, the Deputy Commissioner denied the owner's PARs and affirmed the rent reduction orders.
On April 15, 1991, the owner submitted its rent restoration application regarding rent reduction order CJ130063B. By order dated July 22, 1992, the rent was restored in part for the rent controlled tenants effective August 1, 1992, but the elevator fans were found not to be maintained. The RA stated, in relevant part: "Regarding the issue of inoperative elevator fans, the owner has submitted documentation indicating that the elevators have never been equipped with fans. However, Order Number CJ130063B determined elevator fans to be a required service and the owner failed to raise this issue in its Petition for Administrative Review, which was denied by Commissioner`s Order dated March 28, 1991 . . . " The owner filed a PAR against the July 22, 1992 rent restoration order, which was denied by the Deputy Commissioner`s order dated February 22, 1994. The owner filed a rent restoration application in October 1994. Pursuant to rent restoration orders dated April 3, 1995 and April 23, 1996, the conditions upon which the rent reduction orders were based were found to be corrected and the rent was restored effective February 1, 1995 for rent controlled tenants and December 1, 1995 for rent stabilized tenants. Thereafter, the owner's MCI application was granted on June 11, 1996, effective December 1, 1995 for rent stabilized tenants and July 1, 1996 for rent controlled tenants. Several tenants filed PARs of the order granting the MCI rent increase, arguing that the owner was not eligible to apply for an MCI increase because two rent reduction orders were in effect for failure to provide or maintain building-wide services. By order dated November 24, 1999, the Deputy Commissioner granted the tenants` PARs and revoked the order granting the MCI rental increase, stating in relevant part, as follows:
"A review of the Division`s records indicates that at the time the MCI application was filed on October 26, 1990, there was still in effect two building-wide rent
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reduction orders against the subject premises. The Commissioner finds that the sanction against rent increases imposed by said rent reduction orders was not finally eliminated until a rent restoration application under Docket Number JJ1302730R was granted on April 23, 1996. A prior rent restoration application (under Docket Number FD1300470R) was denied as to rent stabilized tenants on July 22, 1992 and said denial was upheld by Commissioner's order (under Docket Number GH130262RO) issued on February 22, 1994. The MCI application at that point should have been denied pursuant to Policy Statement 90-8. The Commissioner notes that a new restoration application was not filed by the Owner until October 1994." The owner commenced an Article 78 proceeding challenging the November 24, 1999 order. The parties agreed to remit the matter to the DHCR and on May 29, 2003 the Deputy Commissioner issued the order challenged in the instant Article 78 proceeding, revoking the November 24, 1999 order and affirming the RA's order granting the MCI rent increase. In the order challenged herein, the Deputy Commissioner stated in pertinent part as follows: "A review of the Division's records indicates that while there were two building wide rent reduction orders in effect at the time the MCI application was filed, the owner had filed applications to restore the rents based on the restoration of the services that were the subject of those orders. It is also clear that a period of a few months existed during the pendency of the MCI application, where there was no rent restoration application or Administrative Appeal (PAR) pending relative to the outstanding rent reduction order (the owner did re-file rent restoration applications claiming the services were restored). However, it cannot be said that the failure to deny the MCI during this short time was an abuse of discretion, especially in view of the apparent remediation of the services for which the rent reductions had been granted and the fact that the owner was continually challenging the requirement to repair the elevator fan, as it continually claimed that there was never an elevator fan. Given that the MCI application remained pending and as the rent restoration applications were granted (Docket No. IK1300060R, issued on April 3, 1995 and Docket No. JJ1302730R, issued on April 23, 1996 [related to Docket No. CJ130063B1, and Docket NO. FC1300820R, issued on July 10, 1991 [related to Docket NO. AJ130002B]), the Commissioner's prior order

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was issued in error and should be revoked since the services had been restored prior to the issuance of the pending Rent Administrator's order." Herein, petitioner argues that the challenged order should be annulled, reversed and set aside for the reason that the respondent DHCR did not apply the processing provisions of its own Policy Statement 90-8 to the MCI application which is the subject of the challenged order. Policy Statement 90-8 (Failure to Maintain Services/Processing MCI Applications) describes the procedures for processing MCI applications in accordance with New York City Rent Stabilization Code

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