ADM. REVIEW DOCKET NO. BL 440214 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. BL 440214 RO
:
DISTRICT RENT
ADMINISTRATOR'S DOCKET NO.
BH 440023-HW
SUTTON PLACE SYNAGOGUE
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On December 4, 1987, the above-named owner filed a petition
for administrative review of an order issued on October 30, 1987
by a District Rent Administrator concerning the housing
accommodation known as Apartment 2A, 229 East 51st Street, New
York, New York, wherein rent was reduced due to a diminution of
service.
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 review.
On August 19, 1987 the subject tenant filed an application
for a rent reduction based on the owner's alleged failure to
maintain services alleging, among other things, that inadequate
hot water was being provided.
On October 9, 1987, the owner interposed an answer to the
tenant's complaint wherein it alleged that the tenant did not
provide access to the owner in order for it to effectuate
repairs.
On October 7, 1987 a physical inspection of the subject
apartment was carried out by the Division of Housing and
Community Renewal (DHCR). The inspector, in his report, noted
that the water in the subject apartment was 100 degrees
Fahrenheit after three minutes.
On October 30, 1987 the District Rent Administrator issued
the order here under review finding that a diminution of services
ADM. REVIEW DOCKET NO. BL 440214 RO
had occurred and reducing the tenant's rent to the level in
effect prior to the last rent guideline increase which commenced
before the effective date of the rent reduction.
The owner's petition asserts that the Administrator's order
is too vague in that it does not specify in what manner the hot
water is inadequate. For example the owner states that it is not
sure if the Administrator is referring to the temperature, or the
flow, of the hot water, and the owner further states that the
order does not specify in which room the hot water is inadequate.
The owner further asserts that the water temperature is in excess
of what is required by applicable law, and that the tenant
refuses to provide access to allow the owner to inspect and make
repairs. The owner also alleges that the tenant, under Docket
No.BH-410408-S, filed a separate complaint also alleging
inadequate hot water, and that the owner by a letter dated
October 7, 1987, requested that these proceedings be
consolidated. The owner states that by failing to consolidate
these proceedings (BH-440023-HW and BH-410408-S) this constituted
an abuse of the Administrator's discretion.
The tenant's answer to the owner's petition, dated February
7, 1988, asserts that the owner is provided access to make
repairs when proper notice to the tenant is given.
On September 8, 1988, the owner filed a supplement to its
petition stating that it never received a copy of the rent
agency's inspection report. To the supplement the owner attaches
the Administrator's order, under Docket No. BH 410408-S, issued
on August 30, 1988, finding that the subject apartment's hot
water is adequate.
After careful consideration, the Commissioner is of the
opinion that the owner's petition should be granted in part.
The Commissioner finds that the owner knew or should have
known the manner in which the hot water was not adequate. The
owner did receive the tenant's complaint which states that the
hot water is inadequate because, everyday from 6 a.m. to
midnight, it is "provided but not hot enough," and that it is
"provided only some hours during the day."
As Section 27-2032 of the Housing Maintenance Code states
"...every bath, shower, wash basin and sink in any dwelling unit
in a multiple dwelling or tenant-occupied one-family or two
family dwelling shall be supplied at all times between the hours
of six a.m. and midnight with hot water at a constant minimum
temperature of one hundred twenty degrees Fahrenheit....", the
Commissioner is of the opinion that this statute, together with
the tenant's complaint, put the owner on notice of what the
service defect consisted of, and it informed the owner where hot
water is to be provided.
The Commissioner notes that in Docket No. BH 410408-S,
which was the proceeding the owner requested to be consolidated
ADM. REVIEW DOCKET NO. BL 440214 RO
with this proceeding, the owner submitted affidavits by the
subject building's managing agent, the owner's representative, a
mechanic, and a plumber. The managing agent's affidavit stated
that she spoke to the subject tenant, and a date and time was
mutually agreed to, to allow the owner access to effectuate
repairs in the subject apartment. The affidavits by the others,
all state that on the scheduled date and time, they appeared at
the subject apartment, ready and willing to make repairs, but the
subject tenant denied access to them. The Commissioner further
notes that on March 4, 1988 the rent agency conducted an
inspection for access, in which the owner's representative and
the subject tenant agreed that work in the apartment would
commence on March 7, 1988. Accordingly, the Commissioner is of
the opinion that the owner has substantiated its allegation that
the tenant denied access to the subject apartment, and the
Commissioner finds that the owner was denied access to the
subject apartment to effectuate repairs.
The Commissioner further notes that the Administrator found
that there was adequate hot water, under Docket No. BH-410408-S,
issued on August 30, 1988. However, the Administrator's order in
this proceeding should not be disturbed, as the owner has not
shown that it is necessary to have access to the subject
apartment to provide adequate hot water. The Commissioner is of
the opinion that repairs could have been made without access to
the subject apartment, e.g. the owner could have effectuated
repairs in the subject building's boiler room, or other areas of
the subject building which control the water temperature.
Furthermore, the record showed that at the time of the issuance
of the Administrator's order the hot water that was provided for
the subject apartment was inadequate. (The inspector's report
found the water temperature to be 100 degrees Fahrenheit, but
the applicable code requires the hot water to be 120 degrees
Fahrenheit, during the times the complainant states that there
is inadequate hot water).
As the Administrator, in the proceeding under Docket No. BH
410408-S, had determined that adequate hot water was being
provided, and that the owner had previously requested that Docket
Nos. BH 410408-S, and BH 440023 HW (the District Rent
Administrator's docket number in this proceeding) be
consolidated, the Commissioner finds that the Administrator's
order should be modified so that the subject apartment's rent
should be restored to the legal regulated rent, effective March
4, 1988, which is the date the rent agency's inspector (in Docket
No. BH 410408-S) found the subject apartment's hot water to be
adequate.
As to the owner's assertion that it did not receive a copy
of the rent agency's inspection report, the Commissioner notes
that administrative policy and precedent do not require that an
owner in this type of case involving decreased services within an
individual apartment be given a copy of the inspection results,
and the Courts have upheld this procedure. See Empress Manor
Apartments v. NYSDHCR, 147 A.D.2d 642, 538 N.Y.S.2d 49 (1989).
ADM. REVIEW DOCKET NO. BL 440214 RO
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is,
granted in part, and that the order issued by the Rent
Administrator on October 30, 1987 be, and the same hereby is,
modified, in that the legal regulated rent for the subject
apartment is restored, effective March 4, 1988; and it is
FURTHER ORDERED, that if the owner has already complied with
the Administrator's order and, as a result of the instant
determination, there are arrears due to the owner from the
current tenant, the tenant may pay off the arrears in twelve
equal monthly installments during the next twelve months.
Should the tenant vacate after the issuance of this order, all
arrears are due immediately.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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