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.: BD 520129-RO
DRO DOCKET NO.: ZCU 001547-B
NEW HEIGHTS ASSOCIATES PETITIONER :
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 6, 1987 the above named petitioner owner filed a Petition for
Administrative Review against an order issued on March 23, 1987 by the
District Rent Administrator Gertz Plaza, 92-31 Union Hall Street, Jamaica,
New York concerning the housing accommodation known as Apartment 6G at 501
West 183rd Street New York, New York.
The order appealed from ordered a rent reduction for the complaining
tenant in the building based upon a finding that the incinerator rooms on
four floors were dirty and in need of sweeping and mopping. The order was
based on two separate physical inspections of the premises conducted on
December 30, 1985 and on November 11, 1986.
The petitioner presents the following arguments in urging reversal. It
claims that since 20 of the 42 apartments are covered under Section 8 of
the Housing Act of 1937 (42 USC 1437f) no tenant can be eligible for a
rent reduction. Further, it claims that an annual Section 8 HPD
inspection at the time of recertification noted and corrected all
The petitioner also alleges that the incinerator rooms in question were
cleaned regularly. It assert that it cannot keep constant control over
how the tenants use these rooms. The owner also expresses disbelief that
a reduction would be ordered for what it believes is a trivial violation
which, as stated, was beyond its control.
After careful consideration of the evidence in the record, the
Commissioner grants the petition.
Petitioners argument that the fact that some of his tenants are covered by
Section 8 of the Housing Act means that the Commissioner cannot order a
reduction is without merit. The courts have held that, like all other
statutes, Section 8 does not preempt state law. Only specific provisions
that conflict with the letter or purpose of Section 8 will be preempted
(Sec e.g. Morrisiana II Assoc. v. Harvey 139 Misc 2d 651, 527 NYS 2d 954
[Civ Ct NYCTY, 1988]). The Commissioner finds nothing conflicting in
order a rent reduction for failure to provide services. A copy of this
order and opinion will be forwarded to the Department of Housing
Preservation and Development for any action it may wish to take.
DOCKET NUMBER: BD 520129-RO
The petitioner's argument regarding the annual HPD inspection is easily
answered. Regardless of petitioner's duties and responsibilities to HPD,
its duties under the Rent Stabilization Law and Code are wholly
separateand apart. An annual inspection does prove that the owner
fulfills its duty to provide and maintain services year round.
The petitioner's assertion that this violation is in any way trivial is
not correct. Dirty incinerator rooms are potential fire hazards as well
as breeding grounds for infestation. The Commissioner further rejects the
petitioners' argument that it has limited control over what the tenants
do. The Commissioner notes these violations were on four different
floors. Additionally it is settled that a physical inspection is of more
probative value than the assertions of an owner as regards the existence
and seriousness of service decreases.
THEREFORE, in accordance with the provisions of the Rent Stabilization
Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied, and that
the order of the District Rent Administrator be, and hereby is, affirmed.