DOCKET NUMBER: BH 710131-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
------------------------------------X
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: BH 710131-RO
:
DISTRICT RENT ADMINISTRATOR'S
STANLEY ASSOCIATES DOCKET NO.: MBA 7-1-0022-S
PETITIONER :
------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 18, 1987, the above-named owner filed a Petition for
Administrative Review of an order issued on July 27, 1987, by a Rent
Administrator concerning the housing accommodation known as Apartment 3J,
101 Jackson Avenue, Mineola, New York wherein the Administrator directed
the restoration of services, further finding that a rent reduction based
thereon was warranted.
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 administrative review.
This proceeding was commenced on January 28, 1987 by the tenants (Virginia
and Joseph Pulsinella) filing a complaint based on a diminution of
services, alleging among other things that the ventilation fans in the 1
1/2 bathrooms have not been functional since the tenants took occupancy.
In answer to the complaint, the owner (Stanley Seeman) submitted among
other things a copy of the apartment registration and stated in pertinent
part that he is unaware of anything being wrong with the subject fans.
The owner further requested that the Division conduct an inspection in the
owner's presence.
On June 5, 1987, a Division staff member conducted an on-site inspection
of the subject premises and reported in pertinent part that the two
bathroom exhaust fans are not working.
In the order issued on July 27, 1987, that Administrator reduced the rent
to the level in effect prior to the last rent guideline increase effective
February 1, 1987 based on the owner's failure to repair the bathroom
exhaust fans.
In the petition, the owner seeks reversal of the order and states that:
1) Section 2503.4 of the Regulations applies only where
there is a finding that the owner has failed to maintain
services. There has never been a determination in this
proceeding that the exhaust fan in the bathroom is
operating any differently than it did when the ETPA
became applicable to the premises.
DOCKET NUMBER: BH 710131-RO
2) Section 2503.4 applies only to a failure to maintain
services as certified. The exhaust fan in the bathroom
has never been a certified service.
3) The landlord would repair the fans if the Division would
indicate what is wrong with the fans; and the landlord's
request that he be present during the Division
inspection to identify the necessary repairs had not
been granted. And it would appear that the Division is
requiring the fan to do something which it was not
designed to do, or to operate differently than it was
designed to operate.
The tenants did not file an answer to the petition although afforded an
opportunity to do so.
The Commissioner is of the opinion that the owner's petition should be
denied.
Pursuant to the section 2503.4 of the Tenant Protection Regulations a
tenant may apply to the Division for a reduction for the legal regulated
rent to the level in effect prior to the most recent adjustment under
section 2502.5(c)(1) and (2) and the Division may so reduce the rent for
the period for which it is found that the owner has failed to maintain the
services.
Essential services are defined in section 2500.3(d) as those services
which the owner was maintaining, or which he was obligated to maintain,
on May 29, 1974, and may include repairs and maintenance.
The Commissioner finds that the Administrator properly based his
determination on the entire record, including the results of the on-site
physical inspection conducted on June 5, 1987 which disclosed that both of
the bathroom exhaust fans are not working. Therefore, the Commissioner
finds that the Administator properly reduced the tenants' rent pursuant to
Section 2503.4 of the Regulations as a result of the owner's failure to
maintain services.
The assertion that the subject fans may not be operating any differently
at present than at the time of the base date is rejected. Where a service
such as the provision of a bathroom exhaust fan was supplied on the base
date, but such service was defective at that time, the owner remains
lawfully obligated to repair and maintain such service. Further, that the
apartment registration does not specifically reflect the subject fans as
being a certified service does not negate this obligation in the instant
case.
The owner is advised that due process does not require that an owner be
informed by the Division of a forthcoming inspection. The owner had
adequate notice from the tenant's complaint of the subject condition.
Moreover, the owner had almost six months from the date of service of the
tenant's complaint until the issuance of the Administrator's order to
DOCKET NUMBER: BH 710131-RO
investigate the tenants'claims and to make the necessary repairs.
The Commissioner notes that the inspector's finding does not suggest that
the Division is requiring that the fans do something which they are not
designed to do. The owner's obligation is to ensure that the fans
function properly. The owner has failed to submit any evidence to
challenge the inspector's finding, or to show that any repairs were made
to the fans in response to the tenant's allegations.
This Order and Opinion is issued without prejudice to the owner's right to
file the appropriate application with the Division for a restoration of
rent based upon the restoration of services, if the facts so warrant.
THEREFORE, in accordance with the Tenant Protection Regulations and the
Emergency Tenant Protection Act of 1974, 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:
ELLIOT SANDER
Deputy Commissioner
|
