BD 810096 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 810096 RO
PIERCE MANOR REALTY COMPANY, DISTRICT RENT ADMINISTRATOR'S
DOCKET NO. YAL 8-1-0011 S
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On April 6, 1987, the above-named landlord filed a petition for
administrative review of an order issued on March 2, 1987 by a
District Rent Administrator concerning the housing accommodations
known as Apartment 7A, 525 Riverdale Avenue, Yonkers, New York,
wherein the rent was reduced due to a diminution of services.
The Commissioner has reviewed all of the evidence in the record
and has carefully considered that portion of the record relevant
to the issues raised by the petition for review.
On December 1, 1986, the tenant filed an application for a rent
reduction based on the landlord's failure to maintain certain
services, to wit: water seepage in the living room ceiling,
peeling and cracking in the living room wall, and leak damage in
the bedroom ceiling. Earlier, the tenant had filed a service
violation complaint with the City of Yonkers.
On December 24, 1986, the Division of Housing and Community
Renewal (DHCR) received the landlord's answer. The landlord
alleged that it was initially notified of these service problems
when it received the violation complaint from the City of
Yonkers on November 24, 1986. Upon notice it immediately
investigated. The landlord further alleged that after its first
examination of the subject apartment, the earliest date that the
tenant would allow access to make the required repairs was
February 16, 1987.
The tenant, in her reply, stated, among other things, that she
notified the owner of the conditions months earlier by speaking
to the landlord's secretary and superintendent. The tenant
attempted to support this assertion by submitting documentation
of service violation complaints filed with the City of Yonkers
for water seepage in January 1982, July 1984, and the current
complaint in November 1986. The January 1982 and the July 1984
violation complaints involved separate proceedings which had been
finalized. The tenant further acknowledged that she requested
BD 810096 RO
and agreed to February 16, 1987 as the earliest access date
repairs could be made after the landlord made its inspection of
November 24, 1986.
On February 23, 1987, a physical inspection of the subject
apartment was carried out by DHCR. The inspector, in his report,
noted that:
1) the wall in the living room was water stained
and the plaster and paint was peeling and
2) the wall in the bedroom was cracked and
wallpaper was buckling.
On March 2, 1987, the Rent Administrator issued the order here
under review finding that a diminution of services had occurred
and reducing the tenant's rent to the level in effect prior to
the last guideline increase which commenced before the effective
date of the rent reduction. The Administrator determined that
the rent reduction was effective January 1, 1987.
In its petition for administrative review, the landlord requests
revocation of the Administrator's order. The landlord repeats
the allegations made below, namely, that it did not have notice
of the damage until a complaint was filed, and that it was then
denied access until February 16, 1987. Further, the owner
alleges that the Administrator exceeded the scope of the original
complaint. The landlord claims that the original complaint
enumerated only ceiling damage and not wall damage. Finally, the
landlord contends, in the alternative, that the effective date of
the rent reductions should not have been January 1, 1987 because
of the tenant's denial of access.
After careful consideration, the Commissioner is of the opinion
that this petition should be granted in part.
First, the landlord alleges that the Administrator's order
exceeds the scope of the complaints enumerated by the tenant. It
must be noted, that service violation complaints filed by tenants
with municipalities are separate and distinct proceedings from
those filed with DHCR. Accordingly, the complaint filed by the
tenant in this proceeding with the DHCR is determinative of
whether the Administrator exceeded the scope of the enumerated
tenant deficiencies. The tenant's original complaint in the DHCR
proceeding stated that in the living room "...the walls near the
ceiling are cracked and peeling". Clearly, the landlord received
adequate notice of this complaint and its due process rights were
protected.
The second element of the Administrator's order, damage to a
bedroom wall, was not listed in tenant's original complaint.
Because the owner received no notice of the damage to a bedroom
wall, that element of the Administrator's order must be deleted.
The Commissioner finds that the properly determined remaining
service deficiency is, in and of itself, sufficient to sustain
the Administrator's order reducing the rent.
Second, the landlord contends, in the alternative, that the
BD 810096 RO
effective date of the order should have been after access was
permitted by the tenant. The Commissioner finds that the
landlord had no notice of the diminution of services until
November 24, 1986. The tenant only submitted documentation of
separate violation complaints filed with the City of Yonkers
found in 1982 and 1984. She submitted no documentation
corroborating her claim that the landlord, through its agents,
had notice of various service defects. Further, the tenant
acknowledges that after the landlord inspected the premises on
November 24, 1986, it was not permitted access until February 16,
1987. Accordingly, the effective date of the Administrator's
order should have been March 1, 1987 and not January 1, 1987.
THEREFORE, pursuant to the Emergency Tenant Protection Act and
Tenant Protection Regulations, it is
ORDERED, that this petition be, and the same hereby is, granted
in part, and that the Administrator's order be, and the same
hereby is, modified so as to delete from the Administrator's
order the element of damage to the bedroom wall and to change the
effective date of the Administrator's order from January 1, 1987
to March 1, 1987 in accordance with this order and opinion; and
it is
FURTHER ORDERED, that the tenant shall pay any arrears in rent
arising as a result of this order immediately.
ISSUED:
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ELLIOT SANDER
Deputy Commissioner
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