BE 630309 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.: BE 630309 RO
2155 REALTY CORP. DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: AG 630125 B
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 20, 1987 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued April 14, 1987. The order concerned housing
accommodations located at 3150 Roberts Avenue, Bronx, N.Y. The
Administrator ordered a building-wide rent reduction for failure to
maintain required services.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
This proceeding was commenced on July 28, 1986 when 42 tenants
joined in the filing of a Statement of Complaint of Decrease in
Building-Wide Services wherein they alleged the following services
deficiencies:
1. Water leaks causing damage to ceilings and walls;
bricks in need of weatherproofing and pointing
2. Roof door in need of repair
3. Roof exits not lighted; no fire exits for "L" and
"M" lines; "G" lines fire escapes pulling away from
roof wall
4. Elevator does not stop level at all floors and does
not contain inspection sticker; elevator lobby
indicator system in need of repair as well as third
floor button and light
5. Broken hall window chains on Apts. 4G and 3D side
6. First door entering lobby has broken glass and
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missing knob; doors do not close properly; names on
bells missing
7. Lobby lights missing
8. Graffiti and vandalism
9. Superintendent unavailable
10. Tenants must wait inordinate amount of time for
repairs
11. Roach infestation
12. Smoke and soot coming from boiler into hallways and
apartments; inadequate heat and hot water
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on September
5, 1986 wherein it asserted that the building had been pointed and
waterproofed, the roof had been repaired, and a new boiler had been
installed. The owner also stated the roof doors would be checked
and repaired, that roof exit lights are not required, and that the
elevator had been completely removed. It submitted a contract it
had entered into for the installation of an intercom system, as
well as a proposal by a boiler repairer for the installation of
smoke alarms, pre- heaters, oil lines, and boiler room ventilation.
Finally, the owner submitted an agreement with a contractor for the
waterproofing and pointing of the south and west building walls.
The tenants filed a reply on October 4, 1986 and, in sum,
reaffirmed the allegations contained in the complaint.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on October 22, 1986 and
revealed the following:
1. Hall window chains broken in area of 4G and 3D
2. One lobby wall light broken
3. Graffiti on 5th floor wall as well as 1st, 2nd and
4th floor stairwell
The following services were found to have been maintained:
1. No evidence of leak damage in public areas
2. Elevator operating properly
3. No evidence of broken glass in lobby door; door
knob functioning
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4. Names present on bell plates at time of inspection
5. No evidence of roach infestation
6. No evidence of soot in public areas.
The Administrator issued the order here under review on April
14, 1987 and ordered a rent reduction of $9.00 per month for rent
controlled tenants and the most recent guideline adjustment for
rent stabilized tenants. The Commissioner notes that the owner has
filed for rent restoration (see Docket No. GC 130177 OR).
On appeal the owner, through counsel, states that the lobby
light and hallway window chains are minor service defects not
warranting a rent reduction and that graffiti is an aesthetic
condition and not a reduction in required services. The tenants
filed a response on September 28, 1987 wherein they alleged that
services had not been restored. They also took issue with the
owner's characterization of the defective window chains as "minor",
stating that they posed a safety hazard
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
The Commissioner notes that the scope of review in an
administrative appeal is limited to facts or evidence presented
before the Rent Administrator. The owner failed to raise these
defenses in its answer to the complaint despite the fact that the
tenants specifically set out graffiti, broken lobby lights and
defective hallway window chains in their complaint. Therefore, the
owner cannot now raise these defenses, for the first time, before
the Commissioner.
Pursuant to 9 NYCRR 2523.4 (a) a tenant may apply to the DHCR
for a rent reduction and such a reduction shall be granted for the
period for which it is found that the owner failed to maintain
required services. Required services are defined in 9 NYCRR 2520.6
(r) to include repairs and maintenance. Pursuant to ( NYCRR
2202.16 if an owner fails to maintain required services, the Rent
Administrator may order a decrease in the maximum rent in an amount
determined by the reasonable exercise of discretion.
The Commissioner finds that the Administrator properly based
the determination on the entire record including the results of the
on-site physical inspection conducted on October 22, 1986. The
Administrator properly determined that a rent reduction was
warranted based on the conditions cited by the tenants in the
complaint and reported by the inspector.
THEREFORE, pursuant to the Rent Stabilization Law and Code and
Rent and Eviction Regulations it is
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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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