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.: CB230272RO
DOCKET NO.: BH230029B
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW, IN
On February 9, 1988, the above-named petitioner-owner filed a
petition for administrative review of an order issued on January 5,
1988, by the Rent Administrator, concerning the housing
accommodation known as 4514 10th Avenue, Brooklyn, New York,
wherein the Administrator determined that there had been a decrease
of building-wide services, directed a restoration of services and
ordered a reduction of the legal rents.
The tenants' complaint, filed on August 26, 1987, alleged a
broken intercom system; broken mailboxes; insufficient public area
illumination, no on-premises superintendent and no posting in the
hallway listing his name, location, and phone number; inadequate
janitorial services; and inadequate heat and hot water.
The owner responded that the intercom system was not a base
date service; that lighting in the public areas was adequate; that
he was not aware of broken mailboxes; that the building had a
resident superintendent in Apartment 3C; and that heat and hot
water services were adequate.
The challenged order reduced the tenants' rents based on the
results of an inspection conducted on November 25, 1987, that
confirmed the tenants' complaints of a defective intercom system;
broken mailboxes; lack of a resident superintendent and no lobby
posting of the superintendent's name, address, and phone number;
and public areas in need of cleaning.
The owner's appeal maintains that the Administrator's findings
of fact and law were faulty, and should be reversed, as more fully
set forth below. Copies of the owner's appeal were served on the
tenants on May 12, 1988.
Concerning the bare assertion, below and on appeal, that the
intercom system was not a base date service, the Commissioner notes
that the fact that the equipment is a permanent fixture of the
subject building created a presumption that the equipment was
provided on the base date or thereafter. The base date for
services required to be provided for continuously stabilized
tenants is May 31, 1968. The base date for essential services for
rent controlled tenants is April 20, 1962. The owner, who is in
the best position to provide relevant documentation regarding base
date services, submitted no evidence to rebut the presumption that
the intercom was a base date service. The owner's attempt to shift
to the tenants the burden of proving that the intercom system is a
required service is rejected.
In the proceeding below the owner failed to establish the
presence of an on-premises superintendent, and the inspector was
unable to locate the superintendent. On appeal, the owner submits
the superintendent's notarized affidavit, to the effect that he
resides in building. However, the owner fails to explain the
superintendent's absence at the time of inspection. Section 27-
2053 of the Housing Maintenance Code requires, among other things,
that the owner post and conspicuously display the name and contact
information of the individual performing janitorial services. In
light of the record, the rent reduction granted because there was
no superintendent, combined with the fact that superintendent
contact information was not posted and that the public areas
required cleaning, was proper and should be affirmed.
Concerning the owner's argument that the finding that public
areas required cleaning was not an adequate predicate to grant rent
reduction because it lacked specificity, the Commissioner notes
that service of the tenants' complaint gave the owner notice of the
condition, which was confirmed upon inspection. The owner's appeal
is silent as to the owner's responsibility to inspect the premises
and to take corrective action.
The owner further speculates that the condition was an
isolated occurrence and could have been tenant-induced. The fact
that the public areas were found to be dirty three months after the
tenants filed their complaint suggests that janitorial services
provided may not have been either adequate or sufficiently frequent
to maintain the public areas clean. The possibility that the
conditions may have been tenant-induced does not abate the owner's
obligation to maintain the premises clean. The owner's remedy in
such circumstances is to bring an action for relief in a court of
competent jurisdiction against the culpable parties.
The fact that the DHCR issued an order in June 1986 dismissing
allegedly similar complaints did not bar the tenants from seeking
relief for conditions that occurred thereafter.
The inspection confirmed the tenants' complaint of broken
mailboxes. However, the Commissioner concurs with the owner that
three (3) broken mailboxes in this sixteen (16) unit building did
not constitute a basis for building-wide rent reductions. As the
inspection report did not identify the defective mailboxes, the
condition is revoked as a predicate for building-wide rent
reductions. The $4.00 per month rent reductions the Administrator
granted to the rent controlled tenants are hereby also revoked.
Rent arrears may be due to the owner from rent controlled tenants
as a result.
THEREFORE, in accordance with the Rent and Eviction
Regulations, the City Rent Control Law, and the Rent Stabilization
Law and Code, it is
ORDERED, that the owner's petition be granted, in part, to the
extent of revoking building-wide rent reductions predicated on a
finding of broken mailboxes. In all other respects, the
Administrator's order is affirmed. Rent arrears due to the owner
from the rent controlled tenants as a result of this order may be
paid over the course of the next three (3) months.
Joseph A. D'Agosta