ADM. REVIEW DOCKET NOS.: AK 610176-RO ETC.
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
APPEALS OF DOCKET NOS.:
AK 610176-RO
: BL 630069-RO
BL 630359-RO
JOREMI ENTERPRISES, INC.
DRO ORDER NOS.:
Z85B-000409-HH
ZAL-630023-OR
ZCB-630061-OR
Tenant association
president: Anton
Yanchewski
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
NO. AK 610176-RO, TERMINATING PROCEEDINGS IN DOCKET NOS. BL
630069-RO AND BL 630359-RO, AND REVOKING ORDER NOS. Z85B-
000409-HH, ZAL-630023-OR AND ZCB-630061-OR
On November 14, 1986 the above named petitioner-owner filed
a Petition for Administrative Review (Docket No. AK 610176-RO)
against an order (No. Z85B-000409-HH) issued on October 27, 1986
by the District Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York concerning housing accommodations known as
2916 St. Theresa Avenue, Bronx, New York, various apartments
wherein the District Rent Administrator determined that the owner
had failed to maintain hot water services and, based thereon,
reduced the tenants' rent.
On December 7, 1987 the owner filed a Petition for
Administrative Review against an order (Docket No. ZAL-630023-OR)
issued on November 2, 1987 denying the owner's application for a
restoration of the rents reduced by Order No. Z85B-000409-HH.
One copy of the petition was assigned Docket No. BL 630069-RO;
another was assigned Docket No. BL 630359-RO.
As they involve common elements of law and fact, all three
petitions are herein merged and decided in one order and opinion.
The issue in these appeals is whether the District Rent
Administrator's orders were warranted.
The applicable sections of the Law are Sections 9NYCRR
2520.6 and 2525.2 of the Rent Stabilization Code and Sections
ADM. REVIEW DOCKET NOS.: AK 610176-RO ETC.
2201.2 and 2202.16 of the Rent and Eviction Regulations for New
York City.
The proceedings were initiated by the tenants filing a
complaint (Docket No. 85B-000409-HH) of a building-wide decrease
in service in which they alleged "Hot water - on June 12th to
June 13th, 1986 boiler was out of service." Upon being sent a
copy of the complaint, the owner submitted an answer contending
that there had been a backup in the N.Y.C. sewer system on June
12th; that a plumber was sent to pump out the flooded basement;
that there was naturally no hot water on that day until the oil
burner dried out and could be restarted; and that additional
pumps were installed a week later to prevent high water in the
event of future sewer backups. With its answer the owner
enclosed a bill from the plumber and a cancelled check in payment
of the bill.
On October 27, 1986 the Rent Administrator issued an order
reducing both the controlled and the stabilized rents of various
apartments in the subject building.
In its petition (Docket No. AK 610176-RO) against that
order, the owner repeats the contentions given in its answer;
asserts in substance that the Administrator's order does not
indicate the basis of its findings, that the owner's answer was
considered, or that an inspection was done; and contends that a
brief interruption in service due to repairs or circumstances
beyond the control of an owner does not warrant a rent reduction.
In answer, the president of the tenants' association asserts
in substance that there was no sewer backup on June 12, 1986,
according to the N.Y.C. Department of Sewer and Water Supply and
the buildings across the street; and that the installation of a
sump pump was long overdue as the condition of natural surface
water entering the boiler burner pit had existed for a long time
and resulted in numerous breakdowns of the burner.
On December 24, 1986 the owner submitted an application
(Docket No. AL-630023-OR) to restore the rents reduced by the
October 27, 1986 order. A physical inspection on September 17,
1987 of the hot water temperature in the bathrooms and kitchens
of two apartments found three measurements of 114 degrees and one
measurement of 96 degrees. In an order issued on November 2,
1987 the Administrator denied the owner's rent restoration
application on the grounds that the hot water temperature was not
adequate.
On December 7, 1987 the owner filed an original and a copy
of a Petition for Administrative Review against that order.
They were assigned Docket Nos. BL 630069-RO and BL 630359-RO. In
the petition the owner contends in substance that the rent should
be restored as its petition (Docket No. AK 610176-RO) against the
order reducing the rent is likely to succeed; that the limited
nature of the complaint implies that service was restored; that
it has no knowledge of a problem with hot water on the date the
purported reinspection occurred; that the Administrator's order
does not indicate what is meant by "inadequate" hot water; that
ADM. REVIEW DOCKET NOS.: AK 610176-RO ETC.
one inspection over a year after a purported violation is
insufficient to continue a rent reduction; and that the conduct
originally complained of did not rise to a condition warranting
the drastic penalty of a rent reduction.
In answer, the tenants assert in substance that the owner's
petition against the denial of the rent restoration application
may not also attempt to be a petition against the original order
reducing the rent; and that it does not matter if the owner knew
of the hot water temperature violation at the time of the
inspection.
On February 4, 1988 the owner filed an application (Docket
No. CB 630061-OR) for a restoration of the rents decreased in
Docket No. Z85B-000409-HH, again submitting a paid invoice for
having a flooded basement pumped out on June 12, 1986 as well as
stating that it had no knowledge of any problem on September 17,
1987 that would have resulted in inadequate hot water.
In answer, the tenants' attorney asserts in substance that
the owner's application is merely an end run around the denial of
the previous rent restoration application as well as the original
order that found a service decrease, and that as such this
duplicative application should be denied.
On September 9, 1988 a DHCR inspector measured hot water
temperature in 7 apartments, and found it to be 115 degrees, 118
degrees, 120 degrees, 120 degrees, 120 degrees, 122 degrees, and
122 degrees."
The tenants' association president subsequently requested 3
unannounced heat and hot water inspections during the heating
season, and enclosed a Housing Preservation and Development
violation order based on a February 23, 1988 inspection in his
apartment which found a hot water temperature of 112 degrees.
In an order issued on October 19, 1988 the Rent
Administrator, based on the results of the September 9, 1988
inspection, restored the rents effective April 1, 1988 of those
apartments which had had their rents reduced by Docket N . Z85B-
000409-HH. (The tenant association president appealed the
restoration order on November 22, 1988. His petition, Docket No.
CK 610173-RT, was rejected on May 9, 1990 because he did not
submit evidence of authorization by the other tenants to file a
petition. On June 12, 1990 he refiled his petition, which was
assigned Docket No. EF 630364-RT. Because he had not corrected
the procedural defect, the petition was dismissed on August 3,
1990.)
The Commissioner is of the opinion that the petition in
Docket No. AK 610176-RO should be granted, that the proceedings
in Docket Nos. BL 630069-RO and BL 630359-RO should be
terminated, and that Order Nos. Z85B-000409-HH, ZAL-630023-OR and
ZCB-630061-OR should be revoked.
Section 9 NYCRR 2525.2 of the Rent Stabilization Code
ADM. REVIEW DOCKET NOS.: AK 610176-RO ETC.
requires an owner to maintain the services described in Section 9
NYCRR 2520.6. Section 26-514 of the Rent Stabilization Law
mandates a reduction in rent upon a finding that the owner has
failed to maintain services. Section 2202.16 of the Rent and
Eviction Regulations for New York City grants the District Rent
Administrator power to order a decrease of the maximum rent
otherwise allowable for rent controlled apartments, where there
has been a decrease in essential services.
In the present case the tenants claimed that the boiler had
been out of service for a one or two day period. While the owner
agreed that there had been no hot water for one day, neither the
tenants nor the owner claimed that the lack of hot water extended
past that time. Because the DHCR will generally not find a
service decrease where there is a good faith effort to promptly
effect repairs required by an emergency situation, particularly
when the repairs are completed within a day or two of the
beginning of the emergency, the Administrator should not have
found a service decrease and reduced the rent. Because no rent
reduction order should have been issued in the first instance,
and because this order is revoking the Administrator's Order No.
Z85B-000409-HH, the Administrator's orders denying a restoration
application in Order No. ZAL-630023-OR and granting a restoration
application in Order No. ZCB-630061-OR are moot and are herein
being revoked. While the September 17, 1987 measurements of hot
water temperatures in 2 apartments found them to be below the 120
degrees required by the N.Y.C. Housing Maintenance Code these
measurements are not relevant to the issue of whether a rent
reduction should have been granted for a boiler which was out of
service for a day more than a year previous and which was
repaired before the tenants complained about it. The
measurements would also not have been enough in themselves to
warrant a rent reduction absent a complaint, served on the owner,
of continuing inadequate hot water temperatures. Not only were
the measurements not taken as part of such a proceeding; they
were taken as part of a proceeding to restore rents whose
reduction this order finds to have been incorrect ab initio.
If the owner has already complied with the Administrator's
order and there are arrears due to the owner as a result of the
present determination, the owner is directed to allow the tenants
to pay off the arrears in twelve equal monthly installments.
Should any tenant vacate after the issuance of this order, or
have previously vacated, said tenant's arrears shall be payable
immediately.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, and the Rent and Eviction Regulations for New York City, it
is
ORDERED, that the petition in Docket No. AK 610176-RO be,
and the same hereby is, granted; that the proceedings in Docket
Nos. BL 630069-RO and BL 630359-RO be, and the same hereby are,
terminated; and that Order Nos. Z85B-000409-HH, ZAL-630023-OR and
ZCB-630061-OR be, and the same hereby are, revoked.
ISSUED:
ADM. REVIEW DOCKET NOS.: AK 610176-RO ETC.
ELLIOT SANDER
Deputy Commissioner
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