BF 430176-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.: BF 430176 RO
DR. AZIZ ZADE DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: LCS 000198 B
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 29, 1987 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued March 24, 1987. The order concerned housing
accommodations located at 419 East 72nd 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 action on September 26, 1984 by
filing a Statement of Complaint of Decrease in Building-Wide
Services. The following services decreases were complained of:
1. Inadequate janitorial services
2. Superintendent not on premises and cannot be
contacted
3. Inadequate heat and hot water due to defective
boiler
4. Bell and buzzer system malfunctioning
5. Front door lock not secure
6. Insufficient lighting in front of building
7. Illegal fortune teller business on premises
A copy of the complaint was served on the registered agent of the
owner, L.W.L. Associates, and an opportunity to respond was
given. When no response was received the Administrator ordered a
physical inspection of the premises. The inspector visited the
building on October 16, 1985 and found no resident superintendent
in the building and, further, that the public areas were not
being maintained. All other services were found to have been
maintained.
On October 28, 1985 the owner's agent filed a response to
the complaint wherein it stated that the superintendent had been
instructed to clean the building more frequently. The agent also
stated that the bell and buzzer system, entrance door lock and
front lights were working as noted in the inspector's report.
Based on this response the Administrator ordered a re-inspection
of the building. The inspector visited the building on November
26, 1986 and found the public areas not being maintained and in
need of mopping and sweeping. The inspector also reported that
there was no sign indicating where the superintendent can be
reached. Based on the inspector's report, the Administrator
issued the order here under review on March 24, 1987, directing
restoration of services and ordering a building-wide rent
reduction.
The owner makes three arguments in seeking modification or
reversal of the Administrator's order. Before addressing them,
the Commissioner notes that the owner has requested that this
petition be accepted as timely notwithstanding the fact that it
was filed after the time limit established by 9 NYCRR 2529.2 had
expired. The petitioner asserts that the Administrator's order
was sent to the prior managing agent despite the fact that the
owner had advised the Division on February 17, 1987 of a change
in management, effective January 1, 1987. A copy of a "Report of
Changes of Identity of Landlord" was submitted, marked "Received"
by the Division of Housing and Community Renewal (DHCR) on
February 17, 1987. The Commissioner also notes that the ten-
ants' association of the building, in its response to the
petition, does not voice an objection to petitioner's request
that this petition be deemed to have been timely filed. Based on
the Commissioner's review of DHCR records, this petition will be
considered as timely and ready for decision.
The owner's three grounds for reversal/modification are:
1. The order here under review is arbitrary and
capricious in that there is a visiting super-
intendent in the building who is responsible
for keeping the halls clean. The superintendent
does not live on the premises but can be reached
on one hours notice.
2. Petitioner claims it has been unjustly damaged in
that the order here under review is effective
December 1, 1984 for rent stabilized tenants. This
is two and a half years before the issuance of the
order and reduces the rent for the entire time, as
well as freezing rent guideline increases.
Petitioner states that this is an excessive
penalty.
3. The owner claims it has been denied due process in
in that it could not file for rent restoration
until the Administrator had issued the order here
under review which, as stated above, took some
thirty months from the time of the filing of the
complaint.
The tenants association of the subject building filed a
response to the petition and stated, inter alia, that the
"visiting superintendent" actually resided in Westchester and
that the petitioner does not provide an emergency phone number if
the superintendent cannot be reached. Six other tenants filed
individual responses wherein they stated that the hallways were
still dirty despite petitioner's statements to the contrary. The
tenants' also agreed with the statement of the tenants'
associa-tion in that the superintendent lives in Westchester and
is not readily accessible.
After careful review of the evidence in the record, the
Commissioner is of the opinion that this petition should be
denied.
The owner's first argument, i.e. that the order is arbitrary
and capricious, is without merit. Two separate DHCR inspections
confirmed the existence of the conditions set forth in the
Administrator's order. The owner has not submitted any proof to
rebut the inspector's reports and it is settled that such reports
carry more probative weight than the unsupported allegations of a
party to the proceeding. The owner may file for rent restoration
when services have been properly restored.
The owner's second and third arguments deal with due process
violations and unjust damage with regard to the time between the
filing of the tenant's complaint and the issuance and effective
date of the order here under review. The Commissioner notes that
the Administrator's imposition of the December 1, 1984 effective
date of the rent reduction for the three stabilized tenants was
in keeping with DHCR policy to make such a rent reduction
effective the first month following service of the complaint on
the owner. (The rent reduction for controlled tenants is effec-
tive April 1, 1987.) In this proceeding, the owner was served
with the complaint on November 20, 1984. The Commissioner
rejects the owner's contentions that it was denied due process or
was unjustly damaged. Indeed, after the October 28, 1985
response, by the petitioner, to the complaint, the Administrator
ordered a reinspection of the subject premises. This act was
done to insure that the owner was afforded complete due process.
The Commissioner finds that the Administrator was correct in
issuing the order here under review. That order is, accordingly,
affirmed.
THEREFORE, pursuant to the Rent Stabilization Law and Code
and Rent and Eviction Regulations, 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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