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.:
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 30, 1987, the above-named petitioner-owner timely re-
filed a petition for administrative review (PAR) of an order issued
on October 15, 1987, by the Rent Administrator, concerning the
housing accommodation known as 35-46 65th Street, Woodside,
New York, various tenants, wherein the Administrator determined
that the rent for rent stabilized apartments should be reduced to
the level in effect prior to the last rent guideline increase which
commenced before the effective date of the order based upon a
diminution of services and further determined that the maximum
legal rent for rent controlled apartments should be reduced by
$26.00 per month based upon a diminution of services. The Rent
Administrator's order was based upon an inspection held on June 23,
1987. The inspection report revealed that the following service
deficiencies existed at the time of the inspection:
1. Missing building front entrance door lock.
2. Defective bell and buzzer system.
3. Defective roof door lock.
4. Missing building front entrance door glass.
5. No incinerator service provided.
6. No superintendent on premises and no posting
of super's name, address and telephone number.
7. Inadequate janitorial service.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issue raised by the administrative appeal.
The issue herein is whether the Rent Administrator properly reduced
the rents of various rent stabilized and rent controlled apartments
in the subject building.
On appeal, the petitioner-owner asserted, among other things, that
most of the service items which were the subject of the reduction
order have been corrected pursuant to rehabilitation loans negoti-
ated with New York State and pursuant to agreements negotiated with
the New York City Department of Housing Preservation and Develop-
ment; that the registration statement for the subject building
shows that the building was not provided with an incinerator; that
a compactor was installed on the ground floor; that the building
had a superintendent on premises contrary to the inspector's
finding; that the superintendent's name and telephone number is
usually posted in the building but that the sign was removed by
vandals and that janitorial service and rubbish removal services
are provided to the tenants.
The Division served a copy of the petition on the tenants on
January 24, 1988.
Answers were submitted from 18 tenants, each stating, in substance
that all repairs were completed before the rent reduction order was
After a careful consideration of the entire evidence of record the
Commissioner is of the opinion that the administrative appeal
should be denied.
Pursuant to Section 2523.4(a) of the Rent Stabilization Code, a
tenant may apply to the Division of Housing and Community Renewal
(DHCR) for a reduction of the legal regulated rent to the level in
effect prior to the most recent guidelines adjustment, and the DHCR
shall so reduce the rent for the period for which it is found that
the owner has failed to maintain required services.
Required services are defined in Section 2520.6(r) to include
repairs and maintenance.
Section 2202.16 of the Rent and Eviction Regulations provides, that
an owner's failure to maintain essential services may result in an
order of decrease in maximum rent, in an amount determined by the
discretion of the Rent Administrator.
On May 28, 1987, the tenants replied to the owner's answer to the
complaint and emphatically reiterated that the owner's proposed
rehabilitation of the building should not be permitted as an excuse
for the owner's past negligence and further that the complained-of
conditions were omnipresent and serious.
The inspection held on June 23, 1987, fully supported the com-
plaining tenants' assertion that the owner was not providing
required and essential services.
The owner submitted a certificate of work completion dated
September 14, 1987, on appeal, which showed that the rehabilitation
of the subject building was substantially completed prior to the
issuance of the appealed order.
However, the Commissioner finds that the owner's rehabilitation of
the building, whether completed or not, does not run counter to the
Rent Administrator's determination that the owner was not main-
taining services prior to the issuance of the appealed order.
Assuming that the work performed in the rehabilitation of the
building was synonymous with the service items specified in the
complaint, the certificate of completion was not submitted to the
Administrator who based the order appealed herein on DHCR inspec-
tion findings, nor would it be dispositive of the issue of whether
owner was providing required services.
Required services are defined by Section 2520.6(r) as that space
and those services provided on the base date. The inclusion or
omission of services on the initial registration statements is not
determinative of which services an owner must provide.
Since the scope of review in administrative appeals is limited to
a review of the facts or evidence before the Administrator,
evidence submitted by the owner for the first time with the
petition may not be considered, in the absence of any explanation
for failure to submit this evidence before the issuance of the
The Commissioner also notes that the owner's answer of May 11, 1987
to the tenants' complaint did not dispute the tenants' allegations
and it certainly did not allege that incinerator service was not
included on the registration statement or was never provided.
Rather, the owner's answer contended, in effect, that all repairs
were in progress.
By not raising it below, the issue of whether incinerator service
is a service the owner is required to maintain was not considered
and may not be raised for the first time on appeal.
If it is impossible or illegal for the owner to restore incinerator
service to the subject building, the owner may qualify for restora-
tion of the rents only by establishing that an adequate substitute
service is being provided, such as door-to-door garbage pickup or
the placement of garbage receptacles on each floor.
Accordingly, the Commissioner finds that the Administrator properly
based his determination on the entire record, including the results
of the on-site physical inspection conducted on June 23, 1987 and
that pursuant to Section 2523.4(a) of the Code and Section 2202.16
of the Rent and Eviction Regulations the rent reductions ordered by
the Administrator were warranted.
THEREFORE, in accordance with the provisions of the Rent Stabili-
zation Law and Code, and the Rent and Eviction Regulations for
New York City, it is
ORDERED, that this administrative appeal be, and the same hereby
is, denied, and the Rent Administrator's order be, and the same
hereby is, affirmed.
Upon a restoration of services the owner may separately apply for
a rent restoration.
JOSEPH A. D'AGOSTA