DOCKET NO.: AL710247RT
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 :
APPEAL OF ADMINISTRATIVE REVIEW
: DOCKET NO. AL710247RT
VARIOUS TENANTS DRO DOCKET NO. NHEMP86S1503/1591OR
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
UPON RECONSIDERATION
On December 2, 1986, the above named petitioner-tenants filed a Petition for
Administrative Review against an order issued on November 20, 1986, by the
Rent Administrator, 50 Clinton Street, Hempstead, New York concerning housing
accommodations known as various apartments, 380 Front Street, Hempstead, New
York., wherein the Rent Administrator determined that the owner's application
for restoration of rents should be granted.
The rents had been reduced on July 28, 1986, under docket number NHEMP86S330
/416B, wherein the Administrator found that the owner had failed to have (1)
superintendent or other responsible person on the premises for emergency
repairs or work; (2) all intercoms working properly; (3) adequate lighting in
the parking lot; and (4) proper security locks on front and back doors.
In August of 1986 the owner filed a petition for administrative review
(ARL13327N) against the reduction. The petition was denied on March 17,
1988. However, on September 29, 1989, after an Article 78 Proceeding, the
petition was granted in part upon reconsideration to the extent of deleting
the parking lot lighting from the rent reduction order and changing the
effective date of the rent reduction (from April 1, 1986 to August 1, 1986).
Also in August of 1986, the owner filed an application for restoration of
rent based on restoration of services. This was granted on November 20,
1986, i.e., long before the 1989 order eliminated the parking lot lighting as
a factor in the rent reduction.
The tenants' appeal herein is of the November 20, 1986 rent restoration was
filed December 2, 1986. In an order issued January 7, 1992 (AL710247RT) the
rent restoration order was revoked based on the finding on appeal that in
fact the lighting in the parking lot was still inadequate based on a report
which had been submitted by the owner to the Administrator.
On February 11, 1992, the owner requested reconsideration of the January 7,
1992 order. That request was granted on February 14, 1992, based on the fact
that the revocation of the restoration of rent had been based on a finding
DOCKET NO.: AL710247RT
that the parking lot lighting was inadequate. More specifically, since the
September 29, 1989 order (ARL13327N) had retroactively deleted lighting as a
factor in the original rent reduction, the lighting was beyond the scope of
review when the January 7, 1992 order was issued. Thus the revocation was an
impermissible collateral attack on the September 29, 1989 order, an order
which was never appealed.
The order granting reconsideration gave the tenants twenty days to respond to
the issues raised by the owner's request for reconsideration. In response
thereto the tenants' representative stated that the rent had never been
reduced and that the owner "owes us about four (4) months of reductions."
However, the tenants' representative did not respond to the substance of the
owner's request for reconsideration.
Based on the above, petition number AL710247RT will hereby be reconsidered,
without reference to the issue of lighting.
The issue in this appeal is whether the rent restoration for the services of
superintendent and intercoms was valid.
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 administrative appeal.
The rent restoration order found, based on a DHCR inspection, that all
intercoms were working. On appeal the tenants assert that the intercoms
still do not work and that the inspection was defective since 90% of the
tenants were allegedly at work during the inspection. (The inspection report
states the inspector arrived at the subject premises at 4:30 on a weekday but
does not indicate when he left. The report states that all the intercoms
checked by the inspector were working.)
Regarding the superintendent, the owner alleged that a new superintendent had
been hired. On appeal the tenants do not deny that the named individual
lived on the premises but instead claim, without proof, that he is not
qualified for the job.
The petitioners do not dispute that the door-lock service has been restored.
As noted above, the tenants' allegations regarding the parking lot lighting
is beyond the scope of this appeal.
The Commissioner is of the opinion that this petition should be denied.
The tenants' allegation that 90% of the tenants were at work during the
inspector is unproved. More importantly, even if it were true that 90% of
the apartments had no tenant or spouse or other family member available
throughout the inspection period which commenced at 4:30 p.m. on a weekday,
DHCR policy has long been that inspections of intercoms can be done by means
of representative sampling when, as here, there are a large number of
apartments. (The subject building has over a hundred apartments.)
DOCKET NO.: AL710247RT
Therefore, even if 90% of the apartments' intercoms could not be tested, the
remaining apartments would still constitute a sufficient sample. The
inspector found all tested intercoms to be working properly. Accordingly the
Commissioner hereby finds that the Administrator properly found that the
intercom service had been restored.
Regarding the superintendent, it is undisputed that the owner did hire a
live-in superintendent. The Commissioner hereby finds that the tenants'
unsubstantiated and subjective allegation on appeal that he is not qualified
is insufficient to revoke the Administrator's rent restoration. Accordingly,
the restoration is hereby affirmed with respect to this service as well.
Therefore, since the other two services are either beyond the scope of this
appeal or conceded by the tenants to have been restored, the Administrator's
rent restoration order is hereby affirmed.
Regarding the tenant representative's statement in response to the tenant's
request for reconsideration that the owner did not reduce rent and owes the
tenant for four (sic) months of reduced rent, the Commissioner notes the
following:
(1) ARL13327N, pursuant to court order, changed
the effective day of the rent reduction from
April 1, 1986 to August 1, 1986. Since the
rent restoration order was effective as of
September 1, 1986, the five (sic) month period
of the rent reduction was reduced to one
month.
(2) If the owner failed to reduce the rent for one
month the tenants can file overcharge com
plaints. The enforcement of the rent reduc
tion is beyond the scope of the appeal.
Finally, the Commissioner notes that prior order number AL710247RT, which is
hereby being reconsidered, stated that:
"the Commissioner notes that the record supports the
Administrator's determination with respect to the
restoration of the intercom service, and that it is
inconclusive with respect to the restoration of superin
tendent service."
On reconsideration herein the Commissioner has considered the record de novo
and reached the same conclusion regarding the intercoms. However, regarding
superintendent services the present order finds that the record was not
inconclusive but that on the whole it supported the finding of the Adminis
trator. The Commissioner notes that since the prior order revoked the rent
restoration based solely on the parking lot lighting, it was not necessary to
make any finding regarding the superintendent in the prior order. This is
because under Stabilization a rent cannot be restored if even one of the
decreases in services has not been rectified. Accordingly, the statement in
the prior order regarding the superintendent was mere dicta and the
Commissioner is in no way bound thereby in determining the merits of this
DOCKET NO.: AL710247RT
petition upon reconsideration.
THEREFORE, in accordance with the Emergency Tenant Protection Act and
Regulations, it is
ORDERED, that this petition be, and the same hereby is, denied and the Rent
Administrator's order be, and the same hereby is, affirmed as modified
previously under Docket Number ARL13327N.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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