Adm. Review Docket No.: BI-430104-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.: BI 430104-RO
: DRO DOCKET NO.: AG 430068-B
WYNDHAM REALTY CO.,
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
IN PART
On September 17, 1987, the above-named petitioner owner filed a
Petition for Administrative Review against an order issued on August
31, 1987, concerning the housing accommodations known as 571 Third
Ave., New York, New York, wherein the Administrator reduced the
tenants' rents based on a finding of a building wide reduction of
services.
The issue in these proceedings is whether the Administrator's
determination was correct.
The applicable law is Section 2520.6(r) and 2523.4 of the Rent
Stabilization Code and Section 2202.16 of the Rent & Eviction
Regulations.
The tenants commenced these proceedings alleging various building-
wide service reductions. The tenants alleged inadequate hot water
and water pressure; inadequate superintendent services; lack of
access to the basement fuse box and boiler shut-off; fire escape
routes blocked by trash kept near fire escapes and in hallways; and
dirty hallways.
The owner's answer alluded to a response in separate proceedings in
Docket No. AG-410104-B to the effect that hot water and water
pressure were adequate; that while the owner was not required to
maintain an on-premises superintendent, janitorial service were
adequate; that fire exits were not blocked by an accumulation of
garbage; that hallways are cleaned on a daily basis; and that
tenants had access to the basement by requesting the keys from the
storekeeper in the adjoining premises.
The tenants responded, in essence, that none of the problems had
been addressed. One tenant conceded that the problem of erratic hot
water had been addressed.
An inspection was conducted on March 12, 1987 which confirmed all of
the conditions complained of by the tenant.
Adm. Review Docket No.: BI-430104-RO
On August 31, 1987 the Administrator issued order reducing the rents
for rent controlled tenant by 71/2% of the maximum legal rent, plus
$15.00, based on the inspector's findings that the hot water
temperature of 80oF was inadequate (71/2% of the maximum legal
rent); inadequate water pressure ($3.00); no on-premises
superintendent ($4.00); fire exit blocked by an accumulation of
garbage ($4.00); failure to clean public hallways ($3.00); and lack
of access to the basement ($1.00). The order further provided that
all fuel cost adjustment previously authorized were suspended
prospectively.
In the petition, the owner reiterates that its own inspection
revealed the hot water and water pressure to be adequate; that the
law does not require the superintendent live in the building; noting
that the superintendent lived around the corner from the subject
premise; that fire exits are not blocked by garbage accumulation and
are accessible; that the tenants are responsible for properly
bagging and depositing garbage in the receptacles provided; that
hallways are cleaned daily and mopped and swept three (3) times a
week; and that the tenants may obtain access to the basement by
requesting the key from the storekeeper in adjoining premises.
The tenant reiterated that all conditions remained as in the
complaint filed the prior year.
After careful consideration, the Commissioner is of the opinion that
the petition should be granted, in part.
The Commissioner notes that in establishing the facts below, the
Administrator relied on the report of inspection conducted by a
member of the Division inspection staff. The report, prepared by a
rent agency employee, not a party to the proceeding, and not an
adversary to the owner was properly placed in the record for
consideration by the Administrator and was entitled to substantial
weight.
As to the petitioner's assertion that it was not aware that an
inspection was conducted the Commissioner notes that the Division's
procedure did not require the Administrator to give the owner notice
of the inspection nor to apprise the owner of the results.
While janitorial services were properly found to be inadequate, the
petitioner is correct, however, the law does not require the owner
to maintain a superintendent on the subject premises, as long as the
superintendent lives within 200 feet of the subject premises. The
Administrator omission to ascertain whether the superintendent lived
in the immediate vicinity, as alleged by the owner, mandates that
the item be revoked as a basis for a rent reduction, for both rent
controlled and rent stabilized tenants. Consequently, the $4.00
monthly rent reduction granted to rent controlled tenants for lack
of an on premises superintendent is rescinded.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Code, the Rent & Eviction Regulations, Chapter 403 of
the Laws of 1983 and Chapter 102 of the Laws of 1984, it is
ORDERED, that the owner's petition be and the same is granted to the
extent of modifying the Administrator's rent reduction order to
Adm. Review Docket No.: BI-430104-RO
delete the lack of an on-premises superintendent as a basis for rent
reductions. Arrears may be due to the owner from rent controlled
tenants as a result of this finding, payable in equal monthly
installments over the course of the next three (3) months. In all
other respects, the Administrator's order is affirmed.
ISSUED
ELLIOT SANDER
Deputy Commissioner
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