BD 410294 RO
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.: BD 410294 RO
DAVID ASSOCIATES 415 DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: AG 430003 B
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 21, 1987 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued March 17, 1987. The order concerned housing
accommodations located at 415 East 80th Street, New York, N.Y.
wherein the Administrator ordered a building-wide rent reduction
for failure to maintain required or essential services.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The tenants commenced this proceeding by filing a Statement
of Complaint of Decrease in Building-Wide Services. They alleged
that the owner was failing to maintain certain required or
essential services, within the meaning of 9 NYCRR 2520.6(r),
including inadequate building security due to defective locks and
intercom system, unclean public areas, vermin infestation, and
plumbing leaks in the building. The complaint was served on the
owner and an opportunity to respond was afforded. The owner
filed a response wherein it denied the allegations in the
complaint.
The Administrator ordered a physical inspection of the
premises. The inspector's report confirmed that the owner failed
to provide required services building-wide, to wit-- inadequate
garbage removal, public areas in need of cleaning, evidence of
roach infestation and moisture on fifth floor ceiling and walls
from previous leaks as well as chipped paint and plaster. The
Administrator ordered a building-wide rent reduction. The
Commissioner notes that the subject building has since converted
to cooperative ownership.
On appeal the owner, through counsel, states that the
Administrator was in error in concluding that there was a
decrease in building-wide services necessitating a rent
reduction. Petitioner states that it has never been given notice
of the inspection or served with a copy of the inspector's
report, but responds to the Administrator's order as follows:
1. The inspection could not have shown an inadequate
garbage collection schedule in that the building
contains an incinerator with accessible
depositories.
2. The public areas of the building have always been
kept clean and have never required more than
routine painting. Any need for cleaning could
have only resulted from acts of the tenants
calculated to produce false and misleading results
during the inspection
3. The subject building does not suffer from roach
infestation. The owner supplies a copy of a
notice, allegedly posted in the lobby, informing
the tenants of the availability of extermination
services
4. With regard to the finding of moisture from leaks
and peeling paint and plaster, the owner states
that the roof underwent extensive repairs due to
the unauthorized installation of an antenna by a
tenant. The owner states that all such repairs
were done before the owner was served with a copy
of the complaint.
Petitioner points out that the building has converted to
cooperative ownership, as has been stated above, and that the
tenants would have not purchased apartments had conditions been
as stated in the complaint. Finally, the owner states that, even
assuming arguendo that the conditions described by the inspector
do exist, a rent reduction is not warranted.
Twelve tenants filed responses to the petition. Each tenant
takes issue with the statements of the owner and requests that
the Commissioner affirm the order here under review. Several
tenants specifically state that the public areas are still not
clean. Others speak of the existence of roach infestation,
despite the availability of extermination services. The issue of
leakage from the roof is discussed by some tenants, who state
that it is a continuing problem.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be
denied.
The Commissioner finds that petitioner's statements are
insufficient to rebut the Administrator's findings, based on the
report of the DHCR inspector. Initially, the Commissioner
rejects the owner's contention that it was entitled to any notice
of the inspection or the right to be served with a copy of the
inspector's report. DHCR policy is that the service of the
complaint puts the owner on notice of the allegations of services
deficiencies, as well as the necessity of correcting them. This
policy has been upheld by the courts (see Empress Manor
Apartments v. DHCR 147 A.D.2d 642, 538 N.Y.S.2d 49 [2nd Dept.,
1989]). With regard to the actual allegations of the owner as to
the existence of the services deficiencies, the Commissioner has
consistently held that the report of a DHCR inspector are
entitled to more probative weight than the allegations of a party
to the proceeding. In this case, not only has the owner not
supported its allegations, but twelve tenants have responded to
the petition by taking issue with those allegations. Based on
the information in the inspector's report, the Administrator was
empowered to order a building-wide rent reduction and was correct
in issuing the order here under review. That order is,
accordingly, affirmed.
THEREFORE, pursuant to the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is,
denied, and that the Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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