BI 430111 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.: BI 430111 RO
BRADFORD N. SWETT ASSOCIATES RENT
ADMINISTRATOR'S DOCKET
NO.: AA 500063 B
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 17, 1987 the above named petitioner-owner filed
a Petition for Administrative Review against an order of the Rent
Administrator issued August 14, 1987. The order concerned housing
accommodations located at 31 Tiemann Place, New York, N.Y. The
Administrator ordered a 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 January 20, 1986 when 9 of
the 46 tenants joined in filing a Statement of Complaint of
Decrease in Building-Wide Services wherein they alleged the
following services deficiencies:
1. Porter no longer available resulting in decreased
maintenance to public areas,
2. Decrease in laundry room hours,
3. Interior walls cracking, leaking water, shifting,
bulging and plaster crumbling,
4. Floors rotting, missing tiles, sinking and
splintering,
5. Building exterior bricks not secure, leaking water,
rotting window frames, insecure grill work
and fire escape rusting,
6. Window frames rotted, immobile windows, panes loose
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without frames, drafty or warped frames, broken
panes,
7. Apartment doors not secure in frames with some not
swinging freely, some doors not fireproof,
inoperative locks, no numbers,
8. Electricity insufficient, broken outlets in walls
and ceiling, inadequate apartment wiring,
9. Plumbing inadequate with poor sink and tub
drainage, sinks detaching from wall, and loose,
cracked and leaking toilets and sinks,
10. Elevator unsafe, stops unevenly and shakes with
doors not always closing,
11. Mailbox locks insecure,
12. Malfunctioning intercoms,
13. Fire alarms insufficient and broken,
14. Water discolored with fluctuating pressure for both
hot and cold water,
15. Boiler not functioning properly,
16. Fire exits locked,
17. Mice and roach infestation and extermination
notices not posted or hours inconvenient.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on March 3,
1986 and stated, in substance, that services were being maintained.
The owner attached copies of paid bills which were offered to show
the fact that repairs had been made to the building on a continuing
basis.
The Administrator ordered a physical inspection of the subject
building. Inspections were conducted on November 18, 1986 and
April 21, 1987 and revealed that the windows on the fifth and third
floors were separated from their frames.
The Administrator issued the order here under review on August
14, 1987 and ordered a rent reduction of $3.00 per month for rent
controlled tenants based on the inspector's report.
On appeal the owner, through counsel, states that it was
denied due process based on the failure to give it notice of the
inspection and a copy of the inspector's report. The owner further
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states that the order here under review is defective because it
does not indicate which tenants were affected by the service
decrease and order a rent reduction only for those tenants.
Finally, the owner argues that the services reduction found by the
Administrator was too minor to warrant a rent reduction. The
tenant did not file a response.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
With regard to the owner's contention that it was entitled to
notice of the inspection and a copy of the inspector's report, DHCR
policy, as upheld by the courts, is that the filing of the
complaint puts the owner on adequate notice of the existence of
services deficiencies and the need to investigate. (see Empress
Manor Apartments v. DHCR 538 N.Y.S.2d 49, 2nd. Dept. [1989]). The
owner was afforded due process by the proper service of the tenants
complaint.
With regard to the owner's assertion that the tenants must be
directly affected by the services defect to qualify for a rent
reduction, the Commissioner finds that all tenants are entitled to
the continued maintenance of public areas including the windows and
are affected by the failure to maintain same. No further finding is
required. The Administrator correctly ordered a rent reduction for
all rent controlled tenants based on the report of the inspector.
Finally, with regard to the alleged de minimis nature of the
services defect, prior orders of the Commissioner have held that
defective public area windows are a proper subject for a rent
reduction order based on a finding of decreased building-wide
services (see e.g. Docket Nos. ARL 10099 L; ART 05395 K).
Pursuant to Section 2202.16 of the Rent and Eviction
Regulations for New York City the Administrator was empowered to
order a rent reduction based on the reasonable exercise of
discretion, upon finding that the owner was failing to maintain
required or essential services. It is not required that each rent
controlled tenant who was granted a rent reduction have
specifically applied for one. The rent reduction is to approximate
the reduction in rental value due to the decrease in services. The
Commissioner finds that the Administrator correctly reduced the
rent based on the entire record and did not abuse discretion in
ordering a $3.00 per month rent reduction. The order here under
review is affirmed.
The owner may apply for rent restoration when services have
been fully restored.
THEREFORE, pursuant to the Rent and Eviction Regulations for
New York City it is
ORDERED, that this petition be, and the same hereby is,
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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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