ADM. REVIEW DOCKET NOS. BJ 130151 RO AND EG 130189 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
APPEALS OF DOCKET NOS. BJ 130151 RO
and EG 130189 RO
: DISTRICT RENT
ADMINISTRATOR'S DOCKET
NOS. AJ - 130037 - B and
DH 130101 OR
PROVIDENT OPERATING CORPORATION
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE
REVIEW IN DOCKET NO. BJ 130151 RO AND DENYING PETITION
FOR ADMINISTRATIVE REVIEW IN DOCKET NO. EG 130189 RO
On October 28, 1987, the above-named landlord filed a
petition for administrative review of an order issued October 6,
1987 by the Rent Administrator, concerning various housing
accommodations in the premises known as 98-41 65th Avenue, Queens,
New York, wherein the Rent Administrator determined that the
landlord had failed to maintain certain services and accordingly
reduced the rent of the subject accommodations. On July 20, 1990,
the above-named landlord filed a petition for administrative
review of an order issued by the Administrator on June 15, 1990,
wherein the Administrator denied the landlord's subsequent
application for restoration of the rents.
Since the petitions involve common questions of law and fact,
the Commissioner deems it appropriate to consolidate the
proceedings for disposition herein.
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 administrative appeals.
The original proceeding was initiated by several tenants, by
the filing of a building-wide services complaint.
The complaint alleged that:
1) the elevator jumps when inner door closes,
controller does not work, and inspection
certificate missing from the elevator;
2) the vestibule and all the floors need
painting and plastering;
ADM. REVIEW DOCKET NOS. BJ 130151 RO AND EG 130189 RO
3) there is insufficient outside lighting;
4) the basement doors have broken locks;
5) the roof over the garage is dangerous
to walk on because there are cracks and
broken cement; and
6) the intercom system doesn't work properly.
In the landlord's answer it was alleged that the elevator was
working properly; that the public areas of the building were
cleaned daily, and peeling plaster had been repaired; that new
exterior lighting fixtures were installed a week earlier; that
basement door locks were maintained and were in good working
order; that the garage roof were not a part of the subject
premises, and the garage was not an essential service, and that if
a tenant was having trouble hearing the intercom, the owner's
service company would look into the matter.
On January 15, 1987 an inspection was conducted at the
subject building. Such inspection revealed the following service
defects:
1) Plaster and paint were peeling from the sixth floor
hall ceiling;
2) basement doors did not close properly, making locks
ineffective;
3) garage ceiling and walls were water stained; and
4) the front sidewalk was uneven and broken in spots.
On October 6, 1987, the Administrator issued an order
determining that services decreases had occurred in the subject
premises and reducing the rent by $13.00 per month, per apartment
for the complaining rent-controlled tenants.
The landlord's petition (Docket No. BJ 130151 RO) asserts
that the $3.00 of the decrease which was based on the condition of
the garage should be rescinded since the garage is not connected
to the subject building; that it is not managed by the landlord;
that garage facilities are not a required service; that the
garage's condition does not affect the tenants' occupancy of their
apartments, and that the tenants' complaint does not list the
interior condition of the garage as a service defect.
The Commissioner is of the opinion that the landlord's
petition (Docket No. BJ 130151 RO) should be granted.
The Commissioner notes that the defects found by the
Administrator concerning the interior of the garage were not
listed in the tenants' service complaint. The tenants only
complained about alleged difficulty in walking on the roof of the
garage due to cracks and broken cement, but the Administrator
determined that the garage ceiling and walls were defective,
neither of which were listed in the tenants' complaint.
Since the tenants' complaint did not allege defects in the
ceiling and wall of the garage, the landlord had no notice of
those defects, and was never given an opportunity to respond.
Accordingly, the Commissioner finds that the landlord's right to
due process was denied. Therefore, the $3.00 per month decrease
ADM. REVIEW DOCKET NOS. BJ 130151 RO AND EG 130189 RO
in the tenants' rent due to the ceiling and wall of the garage
should be revoked.
The owner filed an application to restore rent on August 21,
1989, under Docket No. DH 130101 OR, on the grounds that the owner
had restored services for which the rent was reduced.
On February 23, 1990 an inspection was conducted at the
subject premises. Such inspection revealed that the defects found
by the Administrator were not corrected.
In the order reviewed herein, the Rent Administrator denied
the landlord's application for a restoration of rent.
The landlord's petition (Docket No. EG 130189 RO) alleges
that:
1) the tenants' complaint was about the
basement doors giving access to the
building, but the basement doors are
for compactor rooms, boiler rooms,
meter rooms and other rooms which are
not for the use of the tenants, and
access to these rooms is not a required
service;
2) the plastering and painting had been
completed prior to the filing of the
application, but there was a recurrence
of leak damage just prior to the rent
agency's inspection of the subject
premises, which has since been repaired;
and,
3) in the tenants' original complaint there
was no mention of the ceiling and walls
inside the garage, yet that was a service
defect found by the Administrator in the
original proceeding.
The Commissioner is of the opinion that the landlord's
petition (Docket No. EG 130189 RO) should be denied.
As already noted, the Administrator's order reducing the
tenants' rent by $3.00 per month due to defects inside the garage
has been found to be unwarranted. Accordingly, that portion of
the landlord's petition pertaining to the garage has been rendered
moot.
The landlord's assertion that the basement doors are not for
the use of the tenants and that they are not a required service is
not a proper issue to raise in a proceeding for restoration of
rent. It is an issue only relevant as to whether the rent
reduction order was proper. Also, the issue of the basement locks
which the petitioner raises for the first time upon administrative
review could have reasonably been raised in the proceeding before
the Rent Administrator. As this issue was not raised before the
ADM. REVIEW DOCKET NOS. BJ 130151 RO AND EG 130189 RO
Rent Administrator, it is outside the scope of the Commissioner's
review and will not be considered in this proceeding.
As to the landlord's allegation that the plastering and
painting were completed prior to the rent agency's inspection, but
leak damage caused a reappearance of this defect, the Commissioner
finds that the Rent Administrator properly relied upon the report
of the agency inspector, but notes that this order is issued
without prejudice to the landlord's right to file another
application for restoration of rents when all services have been
restored.
Moreover, the Commissioner notes that the landlord's
assertion was refuted by the tenants' answers before the Rent
Administrator to the effect that the plastering and painting had
not been done and that the plaster was bubbling.
THEREFORE, in accordance with the City Rent and
Rehabilitation Law and the Rent and Eviction Regulations for New
York City, it is
ORDERED, that the landlord's petition, under Docket No. BJ
130151 RO be, and the same hereby is, granted, and that the order
issued by the Rent Administrator on October 6, 1987 under Docket
No. AJ 130037 B be, and the same hereby is, modified, in that the
rent reduction for rent-controlled tenants provided for therein
be, and the same hereby is, changed from $13.00 per month to
$10.00 per month effective on the first rent payment date
following October 6, 1987 and in that the garage conditions be,
and the same hereby are, deleted as one of the bases for the rent
reduction for the rent-controlled tenants; and it is
FURTHER ORDERED, that the landlord's petition, under Docket
No. EG 130189 RO be, and the same hereby is, denied; and it is
FURTHER ORDERED, that the rent-controlled tenants may repay
any arrears in rent arising as a result of this order in six equal
monthly installments commencing with the next rent payment date.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
ADM. REVIEW DOCKET NOS. BJ 130151 RO AND EG 130189 RO
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