STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BH410310RO
JRD MANAGEMENT RENT ADMINISTRATOR'S
DOCKET NO.: AL410097S
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
The above-named owner filed a timely petition for administrative
review of an order issued on July 21, 1987 concerning the housing
accommodations known as 120 East 89th Street, Apartment #2J, New
York, New York, wherein the Rent Administrator determined that
certain conditions found in subject premises constituted services
decreases. An amended order was issued on May 30, 1989 to reflect
the owner's correct name and address. All other parts of the order
The Commissioner has reviewed all the evidence in the record and
has carefully considered that portion of the record relevant to the
issue raised by the petition.
The tenant commenced this proceeding by filing a complaint
asserting that noises, odor and vibrations coming from the bakery
below the tenant's bedroom reduced the habitability of the
apartment so as to constitute a decrease in required services.
In an answer, the owner denied the allegations set forth in the
complaint or otherwise asserted that all required repairs had been
or will be completed.
Thereafter, an inspection of the subject apartment was conducted by
a DHCR inspector who reported odors, noise and vibrations in
evidence due to business operations in the restaurant and/or bakery
below the subject apartment.
The Rent Administrator's order identified the business operations
as a restaurant, without any reference to the bakery operations
cited in the inspector's report or the complaint. The order
directed restoration of services, and further ordered a reduction
of the stabilization rent.
In its petition for administrative review, the owner states there
is no restaurant below, but a bakery that has been there for the
last thirty years. The owner argues that there could not have been
a decrease in services in the absence of violations of City
Ordinances as any noise or odors were present at the base date. The
owner further contends that it was entitled to review the
inspector's report before a decision was issued, and reiterates
that the owner was entitled to a hearing to cross-examine the
After careful consideration, the Commissioner is of the opinion
that the petition should be granted in part.
Pursuant to Section 2523.4 of the Rent Stabilization Code, DHCR is
required to order a rent reduction, upon application by a tenant
where it is found that an owner has failed to maintain required
The owner correctly points out that the tenant's complaint referred
to disturbances from the bakery below the tenant's apartment,
rather than from a restaurant. In fact, the DHCR inspector's
report reflected that there was a "restaurant or bakery" on the
ground floor, although the facilities were denominated a restaurant
in the Administrator's order. The order is hereby amended to
reflect the evidence of record.
The inspector's observation that there was a "bread odor" in the
tenant's bedroom was insufficient to support a finding of a
reduction of services. It suggests that the odor was nothing more
than the scent of fresh baked goods rather than noxious odors.
The owner's petition does not establish any further basis for
modifying or revoking the Administrators order which determined
that the tenant's complaints of noise and vibrations in the subject
apartment were true based on a physical inspection. The Rent
Administrator properly held that noise and vibrations emanating
from the commercial establishment below constituted a reduction in
services within the meaning of the Code. The conditions interfered
with and limited the tenant's normal use and enjoyment of his
residence. Although the problem was created by a commercial
tenant, the owner had a responsibility to restrain the commercial
tenant and to stop the noise and vibrations.
No conclusion can be drawn from the fact that there was only one
prior complaint, with which the tenant had some involvement, or
from the fact that no City agency violation proceedings were
conducted during the pendency of the DHCR proceedings below.
Concerning the owner's claim that it was denied due process because
it was not given a copy of the inspection report, and an
opportunity to cross-examine the inspector at a hearing, the
Commissioner notes that due process doesn't require that the owner
be given a copy of the report or that he have an opportunity to
respond to the report. Moreover, the inspection report was in the
file and available for examination by the owner through a Freedom
of Information Law (FOIL) request.
Nor does due process require that DHCR hold a hearing. All that is
required is that the parties have notice of the proceedings and an
opportunity to present their positions. Since the owner was served
with a copy of the complaint, it had notice of the alleged
conditions, and as it attempted to refute them in answering papers,
it cannot successfully claim that it was denied due process.
The owner may file a rent restoration application if the facts so
The automatic stay of the retroactive rent abatement that resulted
by the filing of this petition is vacated upon issuance of this
order and opinion.
THEREFORE, in accordance with the Rent Stabilization Law and Code
and the Emergency Tenant Protection Act of 1974, it is
ORDERED, that this petition be, and the same hereby is granted in
part, in that the Rent Administrator's order be, and the same
hereby is, amended to revoke the finding of food odors as a basis
for the rent reduction. It is further
ORDERED, that the Rent Administrator's order be amended to reflect
that the noise and vibrations found in evidence were, in fact due
to business operations in the restaurant or bakery establishment
below the subject apartment. In all other respects, the
Administrator's order, as amended herein, and as amended May 30,
1989 to correct the owner's name and address, is affirmed.
JOSEPH A. D'AGOSTA