Adm. Review Docket Number: CA 410212-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
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: CA 410212-RO
FAME COMPANY, DRO DOCKET NO.: BE 410071-B
PETITIONER
------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
IN PART
On January 14, 1988, the above named petitioner owner filed a
Petition for Administrative Review against an order issued on
December 10, 1987, by the Rent Administrator at Gertz Plaza,
Jamaica, New York, concerning the housing accommodations known as
240 East 83rd Street, New York, New York wherein the Administrator
granted rent reductions based on a finding of a building-wide
reduction of services.
The issue in these proceedings is whether the Administrator's order
was correct.
The applicable law is Section 2523.4 of the Rent Stabilization Code
and Section 2202.16 of the Rent and Eviction Regulations.
The tenants commenced these proceedings by filing a joint complaint
alleging that certain building-wide services were not being provided
or maintained. The tenant asserted that security was inadequate in
that the building did not have an on or off premise superintendent,
that the vestibule door; lock and supporting wall were not properly
installed; that the intercom system did not function for many
apartments, compelling the tenants to leave the apartment to answer
the door; and that the roof and basement doors were not locked.
They also complained that the lack of a superintendent resulted in
poor building maintenance and long delays in making repairs,
including repairs of broken public hallway floor tiles and that the
superintendent named on the sign on the main floor had been dead for
two years.
The owner responded that the entrance door and lock had been
repaired in January 1987 and were operating properly, but that the
wall would be repaired shortly; that the roof door, by law, is not
supposed to be locked; that the basement door was kept unlocked to
allow access to Con Edison and for other services, that the
superintendent lived across the street; that his name and phone
Adm. Review Docket Number: CA 410212-RO
number are posted, and that he performs all janitorial duties
properly. The owner also asserted that repair and maintenance
problems should properly be reported to the owner and not to the
superintendent. The owner also alleges that the building was due
for new linoleum tiles in stairways and hallway floor. Concerning
the intercom, the owner asserted that problems were addressed
promptly by the owner's contractors upon receipt of notification
from the tenants.
In support the owner submitted invoices of services provided on
various dates by the owner's repairmen and locksmith.
An inspection was conducted on September 15, 1987 by a member of the
Division's inspection staff. The inspector reported that a notice
was posted in the hallway noting the address for the superintendent
for the building; that the lobby and doors were clear; that the
basement was unlocked, and that the public hallways did not require
painting. However, the inspector confirmed that there were broken
and loose floor tiles on the 2nd and 4th floors and on the stairs
between the 1st and 2nd floors.
A follow-up inspection was conducted on November 2, 1987. The
inspector reported that a spot check found the intercom system not
working in apartment 3B and 1C; that there was no evidence of a
defective entrance door wall; that the building door was secure at
the time of the inspection; that the inside hallway basement door
was unlocked but that the rear basement door was locked and secured,
that the roof door had a latch lock; that the sidewalk and building
public areas needed to be cleaned; and that the superintendent's
name and phone number were posted, as alleged by the owner.
On December 10, 1987 the Administrator issued orders reducing the
rents for rent controlled tenants by $11.00 for inoperative intercom
system ($4.00); for dirty public areas inside and outside the
building ($3.00); and for the broken and loose tiles in hallways and
stairs ($4.00). The rents for rent stabilized tenants were reduced
to the level in effect prior to the last rent guidelines increase
for each tenant which commenced before the effective date of these
rent reductions, August 1, 1987.
The petitioner challenges the Administrator's determination on the
grounds that the Administrator failed to notify the owner of the
inspection, even though the tenants were allegedly notified, and to
afford the owner the opportunity to review the District Rent
Administrator's file and inspection report in order to prepare the
appeal. The petitioner also requests a hearing to "confront the
evidence" and "be afforded an opportunity to respond to the findings
of the inspector and to cross examine the District Rent
Administrator's inspector."
The petitioner also argues that the Administrator went beyond the
limit of the tenants' complaint in finding the public areas inside
and outside the building to be dirty.
Adm. Review Docket Number: CA 410212-RO
The petitioner further argues that defective floor tiles was a de
minimus condition which could not justify building-wide rent
reductions. The petitioner claims that the installation of new
floor tiles commenced on January 7, 1988.
The petitioner's argument of a denial of due process for failure to
serve notice of the inspection or to have the owner present, or to
serve copies of the inspection reports are rejected. The Division's
procedures do not require the Division to give parties notice of
inspections unless, in the Division's discretion, their presence is
required, nor to apprise the parties of the results. Moreover the
reports, prepared by rent agency employees, not parties to the
proceeding, and not adversaries to either the owner or the tenant
were properly placed in the record for consideration by the
Administrator and were entitled to substantial weight.
With regard to the request for a hearing the Commissioner notes that
the Rent Stabilization Code does not require the Administrator to
hold a hearing. In the absence of such a mandate all that due
process requires is that reasonable notice be afforded to the
parties to the proceedings and that they have an opportunity to
present their objections. The record indicates that the petitioner
had ample opportunity and did, in fact, submit substantial material.
Accordingly it cannot successfully claim that it was denied due
process.
Addressing specific items, the Commissioner concurs with the
tenants' argument to the owner's PAR that their claim of inadequate
maintenance and janitorial services sufficiently alerted the owner
that a finding of dirty public areas inside and outside the premises
could ensue, providing a basis for rent reductions.
The Commissioner also rejects the owner's characterization of the
missing and broken floor tiles in public areas as de minimus items
which did not warrant a finding of a reduction of services. On the
contrary, the condition constituted a hazard to the tenants' safety
requiring immediate corrective action. The petitioner concedes that
repairs did not commence until after issuance of the Administrator's
determination. Moreover, the Courts have held that once the
Division determines that a diminution of services has occurred, the
Division must order rent reductions. Hyde Park Gardens vs DHCR,
140 AD 2d 351, 527 NYS 2d 841 (AD 2nd Dept.) affd., 73 NY 2d 998,
541 NYS 2d 345 (Ct App. 1989).
The petitioner is correct, however, that the finding of a defective
intercom system building-wide should not have ensued from a report
that confirmed the existence of the problem in two apartments.
Accordingly, a defective intercom is revoked as a basis for rent
reduction, except in the two apartments where the condition was
confirmed (3B and 1C).
For rent controlled tenants, the rent is partially restored, in the
amount of $4.00 per month effective January 1, 1988. Any arrears
Adm. Review Docket Number: CA 410212-RO
owed the owner by rent controlled tenants as a result of this order
may be paid in equal monthly installments over the course of the
next six months.
For rent stabilized apartments, the Administrator's order is amended
to delete the defective intercom system as a basis for the rent
reduction. However, as a rent reduction may be granted based on
any service decrease, the rent reductions remain in full force and
effect, predicated on the remaining service reductions found,
without prejudice to the owner's right to apply for rent restoration
in the prescribed manner, if not already done so based on the
restoration of all services.
The owner is reminded of its continuing obligation to maintain
services in the absence of a specific order from the Division. If
the owner has failed to repair and maintain the intercom system, the
tenants may refile their complaint with the Administrator, and are
advised to refer to the Administrator's order below.
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
delete a defective intercom system as a basis for building-wide rent
reductions, as provided above. In all other respects, the
Administrator's order is affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
|
