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.: BJ130275RO
:
GEORGE SUBRAJ, : RENT ADMINISTRATOR'S
: DOCKET NO.: AI130003B
:
PETITIONER :
:
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 8, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review of an order issued on September
3, 1987 by the Rent Administrator, 92-31 Union Hall Street,
Jamaica, NY, concerning various rent stabilized housing
accommodations at the premises known as 88-15 144th Street,
Jamaica, NY, wherein the Administrator ordered a rent reduction
based on a finding of a decrease in building-wide services.
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 appeal.
This proceeding was commenced on September 4, 1986 by tenant
representatives and 25 joining tenant-signatories filing a
complaint of a decrease in building-wide services, alleging
numerous defective conditions including unclean public areas
(hallways and stairways), broken mailboxes, unsanitary garbage
accumulations, and unclean incinerator rooms. The Division mailed
a copy of the complaint to the owner on October 1, 1986.
On October 14, 1986 and on November 18, 1986, the owner filed
answers essentially denying the allegations. In the latter answer
the owner requested a DHCR inspection as well as prior notification
of it to afford him an opportunity to be present, further stating
that he wished to be given an opportunity to correct any defective
conditions should any be found by the inspector.
On February 4, 1987, a Division staff member conducted a
physical inspection of the subject premises. The inspector
reported that the public areas were in need of cleaning; that six
DOCKET NO.: BJ130275RO
(6) mailbox doors were broken; that there were signs of vermin
droppings in the stored garbage area in the basement; and that
there were dirty floors and odors in the incinerator rooms.
In the order issued on September 3, 1987, the Administrator
reduced the tenants' rents to the level that was in effect prior to
the last rent guidelines increase based on a building-wide decrease
in services, citing the above-mentioned items in the inspector's
report.
In the petition the owner claims that the order is arbitrary
and capricious because 1) the inspection was conducted without
notice to the owner despite the owner's request for same, thereby
violating the owner's right to due process; 2) the Administrator
failed to act in accordance with established agency policies and
procedures by not providing the owner with the results of the
inspection despite his request for same, thereby not affording the
owner an opportunity to correct the conditions prior to imposing
the rent reduction; and 3) the services in question are minor
repair items which are necessary in the normal maintenance of a
building. It is further asserted that, assuming the cited items
are found to rise above minor conditions, the Administrator should
have limited the resulting rent reduction to those tenants directly
affected by the service decrease (e.g., the finding of six broken
mailboxes should not have resulted in a rent reduction for all of
the tenants in the proceeding); therefore the proceeding should be
remanded for the purpose of determining which tenants were affected
by the service reductions. Based on these claims, the owner seeks
reversal or modification of the order.
In answer to the petition, one tenant of Apt. 5G states, in
pertinent part, that there is no requirement under the Rent
Stabilization Code for an owner to be afforded prior notice of an
inspection; that there was no prejudice to the owner as a result of
the procedure followed in this case; that the inadequate cleaning
found in the common areas gives rise to vermin and odors, affecting
all tenants; and that the broken mailboxes put tenants at risk of
losing important mail.
In rebuttal to the tenant's answer, the owner adds that,
despite the absence of specific support under the Code, the
Administrator's failure to provide the owner with both notice of
the inspection and inspection results prior to issuance of the
order violated due process because such failure represents a
departure from the procedure followed in other cases. In support,
the owner makes reference to, and submits, two agency forms
involving rent restoration proceedings (unrelated to the instant
case) wherein the results of a prior inspection were provided to
the affected owners.
DOCKET NO.: BJ130275RO
The Commissioner is of the opinion that the owner's petition
should be denied.
Pursuant to Section 2523.4 of the Rent Stabilization Code, a
tenant may apply to the DHCR for a reduction of the legal regulated
rent to the level in effect prior to the most recent guidelines
adjustment, and the DHCR shall so reduce the rent for the period
for which it is found that the owner has failed to maintain
required services. Required services are defined by Section
2520.6(r) to include repairs, maintenance, janitorial service, and
removal of refuse.
Review of the evidence of record shows that the Administrator
based his determination on the entire record, including the results
of the Division's February 4, 1987 inspection which substantiated
the tenants' allegations in their complaint. Therefore, the
Commissioner finds that the Administrator correctly determined that
the owner had failed to maintain services and properly reduced the
tenants' rents.
There was no error with the Division's failure to provide the
owner with prior notice of the inspection (as was requested). The
applicable regulations, agency practice and due process
considerations do not require this be done. Similarly, there was
no duty for the agency to forward the inspection report to the
owner for the purpose of allowing him an opportunity to correct the
defective conditions cited therein, further noting that the owner's
reference to agency processing in rent restoration proceedings is
not relevant to the instant case. Having received a copy of the
tenants' complaint in October, 1986, the owner was on notice as to
the allegations in the proceeding and was afforded an opportunity
to investigate and make corrections as necessary prior to the
issuance of the Administrator's order.
As to the claim about the de minimis nature of the subject
items, the inspector's report did not reflect any of the cited
conditions as being minor in nature. To the contrary, three of the
inspector's findings (enumerated in the order under items 1, 3 and
4) evinced unsanitary conditions throughout the building's common
areas. Furthermore, the record before the Administrator contains no
evidence other than the owner's own statements to show effort by
the owner to address any of the items of the complaint (e.g.,
submission of an exterminating contract). As such, the
Commissioner finds this claim to be self-serving.
The owner's assertion that the rent reduction should apply
only to those tenants directly affected by the service reductions
is not supportable. As noted above, unsanitary conditions were
DOCKET NO.: BJ130275RO
determined to exist throughout, and such conditions necessarily
affected each of the complainants. Therefore, the owner's request
for remand is denied.
The Division's records indicate that the owner's rent
restoration application was granted on April 19, 1989 (DRO Docket
No. CH130037OR).
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that the petition be, and the same hereby is, denied
and the Rent Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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