STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF : DOCKET NO.: BJ430366RO
WHITNEY MUSEUM OF AMERICAN ART, : DRO DOCKET NO.:
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 26, 1987 the above named owner-petitioner filed a
Petition for Administrative Review (PAR) of an order issued on
September 22, 1987 by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, NY, concerning the housing accommodation known as
939 Madison Avenue, New York, NY, wherein the Administrator ordered
a rent reduction affecting various rent controlled apartments at
the subject premises based on a finding of a building-wide
reduction in essential 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 December 18, 1986 by the
tenant of Apartment 3S of the subject premises filing a complaint
of a building-wide decrease in services, alleging, among other
things, that janitorial services had been cut back and the public
areas were not kept clean. A copy of the complaint was forwarded
to the owner's managing agent on January 1, 1987.
On March 23, 1987, the managing agent submitted an answer
disputing the tenant's claim, stating in pertinent part that in
1986 the former super, a part-time employee of the managing agent,
was replaced by a full-time super who devoted as much if not more
time to servicing the building than had the prior super; that the
public areas were regularly cleaned by the new super; and that
improvements had been made in the public areas (e.g., painting and
newly installed light fixtures in the public corridors).
DOCKET NO. BJ430366RO
On April 3, 1987, a Division staff member conducted an on-site
physical inspection of the premises. It was noted in the report,
among other things, that the public areas needed to be cleaned and
that there was no resident superintendent in the building.
In the order issued on September 22, 1987, the Administrator
reduced the rents of the complainant-tenant and four other rent
controlled tenants at the building by $3.00/mo. based on a
determination of a building-wide decrease in services, in that the
public areas were in need of cleaning.
In the PAR, the owner seeks revocation of the order and argues
that, first, the public areas are regularly cleaned and the
Administrator's finding to the contrary was erroneous; second, the
DHCR failed to give to the owner notice of the inspection and an
opportunity to comment on the results thereof, and the DHCR has
thereby acted inconsistently with its own long-standing procedures
and effectively denied the owner from challenging the order in
violation of due process; and third, the Administrator reduced the
rents for all five apartments in the building despite the fact that
the four remaining tenants, other than the complainant, were not
reflected in the complaint application as joining therein, and the
DHCR has thereby precluded the owner from being informed of its
potential liability and additionally has acted beyond its authority
in granting rent reductions for tenants who did not request it.
The owner certified that a copy of the petition was mailed to
the tenant on October 26, 1987.
The tenant did not file an answer to the PAR.
The Commissioner is of the opinion that the owner's petition
should be denied.
Section 2202.16 of the Rent And Eviction Regulations provides
that an owner's failure to maintain services may result in an order
of decrease in maximum rent which the Administrator, in his
discretion, may determine.
Review of the record in the instant case discloses that the
Administrator based his determination on the entire record,
including the results of the Division's April 3, 1987 inspection
report which disclosed that the public areas were in need of
cleaning. Therefore, the Commissioner finds that the Administrator
correctly determined that the owner had failed to maintain services
and properly ordered a $3.00/ mo. reduction in the maximum rent.
The owner's assertion, raised in the answer and maintained on
appeal, that the public areas are regularly cleaned fails to refute
the contrary inspectorial finding which is accorded great weight.
DOCKET NO. BJ430366RO
There was no error with the Division's failure to provide the
owner with prior notice of the inspection. Agency practice and due
process considerations do not require that this be done.
Similarly, there was no requirement for the agency to forward the
inspection report to the owner for purposes of affording the owner
an opportunity to comment on it prior to the issuance of the
Administrator's order. Having received a copy of the tenant's
complaint in January, 1987, the owner was on notice as to the
allegations in the proceeding and was afforded an opportunity to
investigate and take necessary action prior to the issuance of the
order. (Empress Manor Apts. v. DHCR, 547 NYS2d 49, 2nd Dept. 1989)
As to the Administrator's inclusion in the order of the four
remaining tenants in addition to the complainant, Section 2202.16
of the Rent and Eviction Regulations provides that where there is
a finding of a decrease in essential services, the maximum rent for
the housing accommodation shall be decreased by the amount which
the Administrator finds to be the reduction in the rental value of
the housing accommodation because of the decrease in essential
services. Where the service is a building-wide service, the rental
value of all rent controlled accommodations in the building is
affected and rent reductions are warranted, regardless of whether
a rent controlled tenant signed the complaint or requested a
decrease. The apartments of the four named tenants are duly
reflected in the Division's records as rent controlled
accommodations and the four tenants were therefore entitled to the
The owner is advised to file a rent restoration application
upon the restoration of the condition cited in the order. The rent
reduction remains in effect until an order restoring the rent is
issued by DHCR.
THEREFORE, in accordance with the NYC Rent and Eviction
Regulations, it is
ORDERED, that this petition be, and the same hereby is, denied
and the Rent Administrator's order be, and the same hereby is,
JOSEPH A. D'AGOSTA