ADM. REVIEW DOCKET NO.: BK 430147 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 S.J.R. 6319 REMIT
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
BK 430147 RO
:
RENT ADMINISTRATOR'S
DOCKET NO.:
AC 430052 B
CHRIS MAC CO.,
PETITIONER :
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ORDER AND OPINION REMANDING PROCEEDING TO RENT ADMINISTRATOR
On November 4, 1987, the above-named petitioner-owner filed a
petition for administrative review of an order issued on September
30, 1987, by the Rent Administrator, concerning the housing
accommodation known as 87 Christopher Street, New York, N. Y.,
various apartments, wherein the Administrator determined that
certain services were not being provided or maintained and as a
result reduced the rents of various apartments in the subject
building.
On January 31, 1992, the Commissioner issued an order and
opinion granting the owner's petition and revoking the rent
reduction because the record confirmed the owner's allegation that
it did not receive a copy of the tenants' complaint.
Subsequent thereto, the tenants sought judicial review of the
Commissioner's order pursuant to Article 78 of the Civil Practice
Law and Rules. In an order dated October 9, 1992, the matter was
remitted to the Division on consent for further processing.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issue raised by the administrative appeal.
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A review of the record reveals that a complaint alleging a
decrease in building-wide services and requesting a rent reduction
was filed on March 14, 1986. The complaint was signed by tenants
of 17 of the 20 apartments in the building and alleged a flooded
courtyard, defective mailboxes, lack of access to fuses in cellar,
inadequate cold water pressure, dirty air shafts, hall stairways in
disrepair, sealed roof exit windows, defective fire escapes and
drop ladders, defective windows, infestation, inferior back
exterior door, inoperative buzzers, and broken air shaft windows.
There is no transmittal notice in the record to establish that
the complaint was mailed to the owner and there is no answer.
Physical inspections of the subject premises on June 20, 1986
and February 3, 1987 confirmed the existence of:
1. Defective backyard cement due to water in backyard.
2. Defective mailboxes.
3. Air shaft requires cleaning.
4. Defective third floor hallway steps.
5. Air shaft windows requires repair.
Based on these inspections the Administrator ordered a $14.00
per month rent reduction for rent controlled tenants effective the
first rent payment following issuance of the order, and a guideline
reduction for rent stabilized tenants effective May 1, 1986.
In the petition for administrative review, the owner assures
that it had no notice of this proceeding and that all repairs have
now been completed.
Several tenants answered the petition in January 1988 and
agreed that new mailboxes had been installed but asserted that no
other repairs had been done.
After careful reconsideration of the entire evidence of
record, the Commissioner is of the opinion that this proceeding
should be remanded to the Administrator for a physical inspection
to determine current conditions and for referral to the Hearings
Bureau for a hearing on the issue of when the conditions cited in
the Administrator's order were actually corrected.
Although the Commissioner properly determined that it was a
violation of the owner's due process rights to order a building-
wide rent reduction when the owner had never been served with the
complaint, it was a violation of the tenants' rights to revoke the
rent reduction entirely when the lack of notice to the owner was
caused by the Division's error. The tenants were entitled to a
rent reduction pursuant to Section 2523.4 of the Rent Stabilization
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Code and Section 2202.16 of the Rent and Eviction Regulations based
on the finding that required or essential services were not being
maintained.
Since the owner received actual notice of the conditions to be
repaired when the Administrator's rent reduction order was issued
on September 30, 1987, that order should be equated with service of
a complaint. As with the service of any other complaint alleging
a failure to maintain services, if the owner promptly makes the
necessary repairs, and a physical inspection confirms that all
defective conditions alleged in the complaint have been corrected,
then no rent reduction will be ordered. Affording the owner herein
the same rights, the hearing to be conducted on remand should
elicit testimony regarding the date the services listed in the
Administrator's September 30, 1987 order were actually restored.
If it is determined that all repairs were completed within 90 days
of September 30, 1987, then no rent reduction should be ordered.
The 90 day time period is deemed appropriate because it
approximates the time period between the filing of the actual
complaint on March 14, 1986 and the first inspection on June 20,
1986. If it is determined that the defective conditions were not
corrected within 90 days, then the rent for the three rent
stabilized tenants (Paris-Apts. 7 & 8, Moscola-Apt. 4, and Fowler-
Apt. 11) who signed the complaint should be reduced to the level in
effect prior to the last rent guidelines increases effective
October 1, 1987, the first of the month following issuance of the
Rent Administrator's order. The maximum legal rent of all rent
controlled tenants in the building should be reduced by $14.00 per
month, also effective October 1, 1987, as provided for in the
Administrator's order.
It is noted that the owner neglected to file a rent
restoration application during the time that the rent reductions
were ordered by the Administrator on September 30, 1987 until they
were revoked by the January 31, 1992 Commissioner's order. If it
is determined on remand that a rent reduction is warranted, then
the rents should also be restored as of the date that the evidence
indicates that services were restored, but not before January 31
1992, so as not to reward the owner for failing to apply for
restoration. (Once the rent reductions were revoked by the
Commissioner's January 31, 1992 order, the owner had no reason to
file such an application.)
THEREFORE, in accordance with the Rent Stabilization Law and
Code and the Rent and Eviction Regulations for New York City, it is
ORDERED, that this proceeding be and the same hereby is
remanded to the Administrator for further processing in accordance
with this order and opinion. The Rent Administrator's order issued
on September 30, 1987 under Docket No. AC 530052-B remains revoked,
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pending a new determination on remand.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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