DOCKET NUMBERS: ART 10467-K & ARL 10807-K
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.: ART 10467-K
: ARL 10807-K
DOROTHY & ADAM MAIORINO, DRO DOCKET NO.: KC 002148-S
TENANTS, & JOSEPH
SCALOGNA, OWNER PETITIONERS :
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ORDER AND OPINION GRANTING TENANTS' ADMINISTRATIVE APPEAL AND
DISMISSING OWNER'S ADMINISTRATIVE APPEAL
On May 27, 1986 and June 2, 1986 the above-named petitioners filed
Administrative Appeals against an order issued on May 12, 1986 by the
District Rent Administrator, 92-31 Union Hall Street, Jamaica, New York,
concerning the housing accommodations known as 1922 85th Street, Brooklyn,
New York, Apartment B-3.
The Commissioner deems it appropriate to consolidate the administrative
appeals for determination under this order and opinion as they involve
common issues of law and fact.
The administrative appeals are being determined pursuant to the
provisions of 9 NYCRR 2202.16.
The issue herein is whether the District Rent Administrator properly
determined the tenants' complaint of service reduction.
A review of the record indicates that on January 23, 1985, the tenants
filed a complaint of service reduction wherein they stated, in substance
and in pertinent part, that the gas stove does not work; that there are
leaks from the ceilings in the bathroom and living room which have caused
water-damage to their personal possessions; that there is inadequate heat
and hot water; and that the apartment is infested with roaches and mice.
The tenants further stated that their apartment is subject to rent
control; that they have occupied the apartment since March, 1953; and that
their current rent is $193.00 per month.
On March 8, 1985, the Division mailed a copy of the tenants' complaint to
the owner who responded on March 13, 1985, in substance and in pertinent
part, that he provides all services to all apartments; that the tenants
have no reason for any complaints; that he sent a plumber and a contractor
to repair the subject apartment while he was in court with the tenants for
nonpayment of rent; that there are no leaks in the apartment; that there
is plenty of heat and hot water; and that there are no mice in the
apartment.
On May 10, 1985, the Division mailed a copy of the owner's answer to the
tenants. The tenants replied on May 20, 1985 by submitting, among other
DOCKET NUMBERS: ART 10467-K & ARL 10807-K
things, a letter dated April 23, 1985 from the owner to the tenants
advising the tenants of the 1985 fuel cost adjustment for rent-controlled
apartments and a copy of Part VI, Schedule of Monthly Rent Increases or
Decreases for Controlled Apartments - Fuel Cost Adjustment 1985, dated
April 23, 1985 wherein the owner indicated the subject apartment as a
qualifying rent-controlled apartment and the tenants herein as the
residents.
On November 6, 1985, an inspector visited the subject apartment and
reported that the stove did not have a door on the broiler; that there was
no handle on the oven door; that there were three knobs missing from the
stove; that the ceiling and walls in the bathroom had been repaired but
not painted; that the living room leak was not repaired; that the hot
water temperature was adequate; and that there was no exterminating
service being provided and no signs posted in the hallway.
On March 21, 1986, the District Rent Administrator issued an order which
reduced the maximum legal rent for the subject apartment by $13.00 per
month pursuant to Section 2202.16 of the Rent and Eviction Regulations
based upon the physical inspection of November 6, 1985. The following
conditions in need of repair were listed in the order: 1) stove does not
have a door on the broiler, also no handle on the oven door; 2) missing
knobs on the stove; 3) living room water seepage in ceiling; 4) no
exterminating services being provided.
An entry dated May 12, 1986 on the Progress Sheet of Examiner indicates
that the owner visited the public information offices of the Division and
stated that the District Rent Administrator's order of March 21, 1986
incorrectly described the subject apartment as a rent-controlled unit in
that the tenants were rent-stabilized; and that the owner requested a
corrected order reflecting the true status of the subject apartment.
On May 12, 1986, the District Rent Administrator issued the order
appealed herein. Said order reduced the rent for the subject apartment to
the level in effect prior to the last rent guideline increase which
commenced before the effective date of the order, such rent reduction
being effective as of April 1, 1985, the first rent payment date after the
Division informed the owner of the tenants' complaint, pursuant to
Sections 2520.6(r) and 2523.4 of the Rent Stabilization Code. Said order
cited the same conditions in need of repair as were cited in the order of
March 21, 1986. It was noted in the order that said order corrected and
superceded the order issued on March 21, 1986.
On appeal, the petitioner-tenants allege, in substance, that the District
Rent Administrator's correcting order of May 12, 1986 should be reversed
and the original order of March 21, 1986 should be reinstated as the
subject apartment is subject to rent control; and that the owner's Report
of Vacancy Decontrol under Docket No. KC 003608-SD contains incorrect
information. The tenants submitted with their appeal various documents
indicating their residence at the subject apartment since prior to June
30, 1971.
On appeal, the petitioner-owner alleges, in substance, that the tenants
deliberately damaged the apartment for the purpose of getting a rent
reduction and bringing lawsuits against the owner; that the tenants are
liars; that they are abusing the system because they wa t to live rent-
free; and that the tenants always refuse access to workmen who come to
DOCKET NUMBERS: ART 10467-K & ARL 10807-K
repair the apartment.
After a careful consideration of the entire evidence of record the
Commissioner is of the opinion that the tenants' administrative appeal
should be granted and that the owner's administrative appeal should be
dismissed.
The evidence of record indicates that the owner did not file an
administrative appeal against the District Rent Administrator's order of
March 21, 1986 within thirty-five days after the date of issuance of said
order in accordance with the provisions of either 9 NYCRR 2208.2 or 9
NYCRR 2529.2. Subsequent to the expiration of the thirty-five day period,
the owner appeared at the offices of the Division and requested that the
District Rent Administrator issue a correcting order in which the subject
apartment's stat s would be revised from rent-controlled to rent-
stabilized. On May 12, 1986, the District Rent Administrator issued such
correcting order. The substance of the order remained the same, i.e. that
a physical inspection revealed that the owner had failed to provide and/or
maintain certain specified services required under either rent control or
rent stabilization. The owner filed an appeal against the correcting
order.
The Commissioner finds that the owner's administrative appeal should be
dismissed as not having been timely filed within thirty-five days of March
21, 1986, the issuance date of the first order. Where a District Rent
Administrator issues a correcting order of an earlier order and the
correction does not affect the substance of the proceeding, the second
order does not give the party aggrieved by the first order, who had failed
to appeal the first order, a new right to file an administrative appeal
(Accord: Administrative Review Docket No. CB 220314-RO). Since the
correction involved herein, a revision of the status of the subject
apartment, did not affect the substance of the order, that being a finding
of service reduction, the owner's right to file an administrative appeal
was not revived.
Moreover, the evidence of record indicates that the correcting order
should be revoked. The tenants have submitted competent evidence of their
continuous occupancy of the subject apartment since prior to June 30,
1971, and no other basis for decontrol has been offered. One of the
documents submitted was prepared by this owner on April 23, 1985 and lists
these tenants and the subject apartment as rent-controlled. In view of
the foregoing, the Commissioner further finds that the correcting order of
May 12, 1986 should be revoked and the original order of March 21, 1986
should be reinstated and affirmed.
The owner may apply for a restoration of the rent upon restoration of
required services.
THEREFORE, in accordance with the provisions of the Rent and Eviction
Regulations for New York City, it is
ORDERED, that the owner's administrative appeal be, and the same hereby
is, dismissed; that the tenants' administrative appeal be, and the same
hereby is, granted; that the District Rent Administrator's order of May
12, 1986 be, and the same hereby is, revoked; and that the District Rent
Administrator's order of March 21, 1986 be, and the same hereby is,
affirmed.
ISSUED:
DOCKET NUMBERS: ART 10467-K & ARL 10807-K
ELLIOT SANDER
Deputy Commissioner
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