BJ610361RO
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
APPEAL OF DOCKET NO.: BJ610361RO
GLENBRIAR CO. RENT
ADMINISTRATOR'S DOCKET
NO.: AI610001RP
PETITIONER BS003618S
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND MODIFYING RENT ADMINISTRATOR'S ORDER
The above named petitioner-owner timely refiled a Petition for
Administrative Review against an order of the Rent Administrator
issued July 3, 1987 concerning the housing accommodations known as
Apt. A-512 located at 4555 Henry Hudson Parkway, Bronx, N.Y.
wherein the Administrator revoked three prior orders and affirmed
a prior rent reduction order issued on January 26, 1984.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The tenants originally commenced a proceeding before the
former New York City Conciliation and Appeals Board wherein they
stated that they owner was not maintaining certain required
services including defective window sashes, broken glass panes on
terrace, inadequate hot water, rusted terrace railing and cracked
toilet bowl. The proceeding was assigned Docket No. 73361-P. The
Board issued Opinion No. 28,166 as amended on January 26, 1984 and
ordering a rent reduction based on the owner's failure to maintain
the services described above.
The tenants filed a complaint before this agency on October
12, 1985, wherein they alleged that the owner was not maintaining
certain required services including a stove that did not level
properly and a peeling terrace roof. The proceeding was assigned
Docket No. BS003618S. The Administrator issued an order on
November 24, 1985 wherein restoration of services was ordered and
the tenant was granted a rent reduction effective December 1, 1985.
On January 2, 1986 the Administrator issued a "Corrected Order"
wherein the complaint was denied.
BJ610361RO
The tenants requested reconsideration of these contradictory
orders. On February 10, 1987 the Administrator sent a notice to
the parties wherein the proceeding was reopened and the following
proposed action was stated:
1. Modification of the order issued on November 26,
1985 wherein a rent reduction was granted,
2. Revocation of the order issued on January 2, 1986
wherein the complaint was denied,
3. Revocation of certain rent restoration orders
issued April 24, 1986,
4. Affirming the Conciliation and Appeals Board order
described above. The Administrator noted that this
rent reduction remained in effect until a new rent
restoration order was issued.
The parties were afforded an opportunity to respond to this notice.
The owner filed a response to the notice on March 12, 1987
wherein it protested the proposed revocation of the January 2, 1986
order and the rent restoration orders issued on April 24, 1986 on
the grounds that it had not been given full and fair notice and an
opportunity to be heard on the issue and that at least three
physical inspections of the subject apartment revealed that
services had been restored. The owner also protested the proposed
affirmance of the Conciliation and Appeals Board order on the
grounds that it had filed rent restoration applications on June 10,
1985 and December, 1985 but that the applications remained
unprocessed. The owner requested that the orders restoring the
rent be affirmed.
The tenant filed a response on October 3, 1987 and stated that
the owner was on notice of all conditions cited on the November,
1985 order granting a rent reduction. The tenants attached copies
of correspondence they had sent to the owner on September 4, 1985,
October 12, 1985 and February 1, 1986 notifying it that services
still had not been restored.
The Administrator determined that a reinspection of the
subject apartment was necessary and ordered one to be conducted.
The inspection was conducted on April 23, 1987 and revealed the
following:
1. Stove oven inoperative,
2. Terrace has peeling paint and plaster and a clogged
drain.
All other services complained of were found to have been
BJ610361RO
maintained.
The Administrator issued the order here under review on July
2, 1987. The above described orders issued on November 24, 1985,
January 2, 1986 and April 24, 1986 were revoked. The C.A.B. order
issued on January 26, 1984 was affirmed based on the April 23, 1987
report of the DHCR inspector.
On appeal the owner states it was never notified of the
alleged deficiencies which the tenant complained of and that the
items cited in the Administrator's July 2, 1987 order were never
specifically mentioned in the complaint. The petition was served
on the tenants.
The tenants filed a response on December 14, 1987 and stated
that the owner was indeed on notice about the conditions involving
the oven and terrace. The tenant attached copies of the letters
they had sent to the owner and submitted to the DHCR in response to
the Administrator's notice informing it that the proceeding was
being reopened. The owner filed a reply on December 28, 1987 and
essentially restated the grounds it had set forth in the petition.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be granted
in part and the Administrator's order should be affirmed as
modified herein.
The Commissioner's review of the record of the proceedings
before this agency and before the Conciliation and Appeals Board
leads to the conclusion that the Administrator's order must be
modified. The tenants filed a complaint before the Conciliation
and Appeals Board. The Board issued an order in January, 1984,
reducing the rent based on a finding of five different services
deficiencies. The tenants filed a complaint before the DHCR on
October 12, 1985 (Docket No. BS003618S) wherein they alleged that
the kitchen stove was uneven and that the terrace had peeling paint
and a clogged drain. The tenants were within their rights to
complain about these new conditions and to request a rent reduction
based thereon. The Administrator issued contradictory orders both
granting and denying a rent reduction. A rent restoration order
was also issued in April, 1986. Based on all of the foregoing, it
is clear that the Administrator was correct in reopening this
proceeding.
The physical inspection ordered by the Administrator and
conducted on April 23, 1987 revealed that the conditions which
formed the basis for the rent reduction ordered by the C.A.B. had
been corrected. The Administrator was correct in affirming the
C.A.B. opinion but should have ordered rent restoration effective
April 23, 1987 based on the above described inspector's report.
With regard to the separate proceeding bearing Docket No.
BJ610361RO
BS003618S it is clear from the inspector's report that the owner
failed to maintain the stove and terrace. The owner states that
the tenant never complained that the subject stove was inoperative
but merely stated that the stove did not level. The Administrator
instructed the inspector to check the stove "for defective leveling
which makes the stove inoperative". The inspector responded to
this instruction by reporting that the stove was inoperative. The
Commissioner therefore finds that the Administrator's finding was
within the scope of the complaint and properly ordered a rent
reduction based, in part, on this condition. The tenant clearly
complained about peeling paint on the terrace and inoperative
drain.
Based on all of the foregoing, a rent reduction was warranted,
The rent is reduced to the level in effect prior the last rent
guideline increase which commenced before the effective date of
this order. The rent reduction is effective May 1, 1987, and is
being granted for the conditions cited in the Administrator's July
2, 1987 order. 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. The owner may file for
rent restoration when services have been fully restored.
THEREFORE, pursuant to the Rent Stabilization Law and Code it
is
ORDERED, that this petition be, and the same hereby is,
granted in part, that the order of the Conciliation and Appeals
Board described above be, and the same hereby is, affirmed and it
is further
ORDERED that rent be, and the same hereby is, restored
effective May 1, 1987 for the conditions cited in the order issued
by the Conciliation and Appeals Board in Docket No. 73361-P which
were found to have been corrected in the inspection on April 23,
1987 and it is further
ORDERED, that a rent reduction be, and the same hereby is,
granted for the stove and terrace effective May 1, 1987.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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