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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.:
BH410285RT
MICHAEL MCKEE,
RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONER LCS000568B
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 26, 1987, the above-named petitioner-tenant filed a
petition for administrative review (PAR) against an order issued on
March 19, 1987, by the Rent Administrator at Gertz Plaza, Jamaica,
New York, concerning the housing accommodation known as 233 West
21st Street, New York, New York, building-wide, wherein the Admin-
istrator determined the tenants' services reduction complaint.
The applicable laws are Section 2523.4 of the Rent Stabilization
Code and Section 2202.16 of the Rent and Eviction Regulations.
The tenants commenced these proceedings on October 28, 1985, by
filing a joint complaint alleging decreases of various building-
wide services. The tenant complained, in substance, that:
1. The elevator was defective in that the elevator doors did
not close properly, the shaft was dirty, and a safety
plate was missing on the fourth floor.
2. Electrical service was inadequate, and wiring defective
and hazardous.
3. There were various plumbing problems in a majority of
apartments (unidentified).
4. The "C" line apartment kitchens did not have adequate
mechanical or window ventilation, and were in violation
of applicable law and regulation.
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5. The heating system was inadequate and the boiler plant
equipment was defective.
6. There was no on-premises superintendent, janitorial
services were inadequate, and the public areas were
poorly maintained and dirty, and had roach and rodent
infestation.
7. The concrete curb, sidewalk, front steps and vestibule
areas were cracked and dirty.
8. The public areas were poorly lit and banisters were
broken.
9. The exterior side and rear areas of the subject premises
were poorly lit, had cracked concrete paving, and poor
drainage.
10. The roof surface was wavy and bubbled, resulting in
puddling of water and ceiling leaks in the top floor
apartments.
11. The brick chimney was cracked and in need of mortar
repairs and pointing.
12. The fire escapes were rusted and blistered, and the win-
dow mortar joint bricks were loose.
13. The exterior brick walls were defective.
14. The window frames, sashes, panes and blinds were de-
fective.
15. The front and vestibule doors did not close properly.
16. The intercom system did not work properly.
In a detailed response, stamped received by the Division of Housing
and Community Renewal (DHCR) on February 3, 1986, the owner
asserted that there had been no reduction in services, that the
complaint was an attempt by the tenants to coerce the owner to make
extensive improvements before conversion of the premises to co-
operative status, and that some of the complaints concerned
conditions the owner had already changed or was in the process of
upgrading, e.g., rewiring, painting of the common areas, and
replacement of the front doors.
As to a purported electrical fire, the owner stated that a fire had
occurred in 1977 due to extension cords strung by the then superin-
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tendent across hot water-pipes in his basement apartment, rather
than from the building's electrical wiring.
An inspection conducted May 8, 1987 by a member of the Division's
inspection staff found no evidence of any of the numerous condi-
tions detailed in the tenants' complaint. The inspector reported,
in substance, that:
1. The elevator was operational, the doors closed properly,
the shaft was clean and found no safety plate to be
missing.
2. There was an on-premise superintendent, and the
janitorial services were adequate, but that the
superintendent's name, address and telephone number were
not posted.
3. There was no evidence of roach and rodent infestation in
the public areas or the basement.
4. The building's sidewalk areas were clean.
5. The public area lighting and exterior lighting were ade-
quate and the drainage effective.
6. The intercom was operational.
7. There was no evidence of broken or defective banisters,
broken sidewalk curb or entranceway, or courtyard area
concrete, of broken entrance or vestibule stairs, of
chimney or exterior brick defects, of defective fire
escapes, or of defective entrance or vestibule doors or
locks.
Based on the inspection report, the Administrator denied the relief
requested, stating that the conditions had been corrected.
In the appeal, the petitioner requested that the Administrator's
order be set aside on the grounds that many of the conditions
complained of remained, that the inspector's findings were in
error, that failure to serve the tenants' representative with the
inspection report in order to afford the tenants the opportunity to
respond was a denial of due process, and that the order was vague,
unspecific and cited no law upon which the Administrator based his
conclusions. The DHCR's then procedures permitted service of the
appeal by the petitioner, who asserted that he served the owner on
August 26, 1987.
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The owner responded that the building became a residential co-
operative on November 16, 1987, that the building was in excellent
condition and that the complaint was an attempt to forestall the
conversion.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
Section 2523.4 of the Rent Stabilization Code provides, in perti-
nent part, that a tenant may apply for a rent reduction if the
owner fails to maintain required services. Section 2202.16 of the
Rent and Eviction Regulations requires that rents be reduced if it
is found that services have not been maintained. Thus, to effectu-
ate rent reductions for a decrease in services, the Administrator,
generally relying on an inspection, must make an affirmative
finding of a failure to maintain services.
Since the May 8, 1987 inspection revealed no condition constituting
service reductions, the Administrator properly determined that rent
reductions were not warranted. In light of the fact that there
were no items found constituting services reductions, the peti-
tioner's criticism that the Administrator's order was vague and
unspecific is rejected.
The petitioner also asserts that the May 8, 1987 inspection was not
the first performed by the Division in this proceeding; that
another inspection took place in May 1986. He argues that since
the Administrator's order found that conditions were corrected, the
first inspection must have shown diminished services upon which
rent reduction should have ensued. A copy of that inspection was
not found in the case docket. The Examiner's progress sheet notes
do indicate a request for an inspection in April 1986. In addition,
Inspection Unit log records do disclose that although the inspector
failed to obtain access to the subject premises on May 15, 1986, an
inspection was completed on May 28, 1986. Efforts were made at PAR
to locate the report. Despite diligent efforts, the May 28, 1986
inspection report could not be located.
The Commissioner will not speculate as to the contents of the
missing inspection report. The Commissioner does note that the
owner acknowledged that certain items were being repaired and
upgraded prior to and in the course of the proceedings below. The
record further shows that there was no evidence of decreased
services at least two months prior to the Administrator's order.
The Commissioner is of the opinion that the record presented
establishes that the owner made prompt and effective efforts to
provide the tenants with required services and that such services
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were in fact provided. Accordingly, the Commissioner finds that
the Administrator did not abuse his discretion to determine that
rent reductions were not warranted.
The Commissioner rejects the petitioner's assertion that lack of
opportunity to address the inspector's May 8, 1987 findings consti-
tuted a lack of due process. Neither the Division's then
procedures nor due process requirements compelled the Adminis-
trator to give the parties notice of an inspection or to apprise
them of the results for comment. Moreover, the report was prepared
by a rent agency employee not a party to the proceeding, and not an
adversary to the tenants. The report was entitled to, and given,
great weight by the Administrator.
The owner disputes the petitioner's status as a tenant. As the
matter was not before the Administrator in the proceedings below,
the Commissioner declines further consideration of this issue on
appeal, which is strictly limited to a review of the issues and
evidence presented to the Administrator for determination.
Parenthetically, the Commissioner also notes that Section 2529.1 of
the Rent Stabilization Code provides that a PAR must be verified or
affirmed by each person joining therein and that a PAR filed by an
alleged representative must include, at the time of filing the PAR,
written evidence of authorization to act in such representative
capacity for the purpose of filing the PAR. In light of the instant
determination, the question of whether the petition was properly
filed on behalf of other tenants, or whether the petition should be
considered to have been filed individually, has been rendered moot,
and need not be considered herein.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code, the City Rent Control Law, and the Rent
and Eviction Regulations for New York City, it is,
ORDERED, that this petition be, and the same hereby is, denied, and
that the Rent Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
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JOSEPH A. D'AGOSTA
Deputy Commissioner
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