CI 110142 RO; CH 110094 RT
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 SJR 6668 MANDAMUS
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.:
CI110142RO
CH110094RT
COPENHAGEN LEASING COMPANY and RENT
VERNELLE JONES ADMINISTRATOR'S DOCKET
NO.: CB 110105 S
PETITIONERS
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ORDER AND OPINION DENYING TENANT'S PETITION AND GRANTING IN PART
OWNER'S PETITION
The above referenced administrative appeals have been
consolidated for decision since both contain common issues of law
and fact.
The above named petitioner-owner and petitioner-tenant filed
timely Petitions for Administrative Review against an order of the
Rent Administrator issued July 29, 1988. The order concerned
housing accommodations known as Apt 16B located at 96-08 57th
Avenue, Corona, N.Y. The Administrator ordered a rent reduction
for failure to maintain required services.
Subsequently, the owner instituted a mandamus proceeding
pursuant to Article 78 of the Civil Practice Law and Rules in New
York State Supreme Court. A stipulation was entered into wherein
the agency agreed to issue a determination of the owner's petition
no later than March 5, 1993.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeals.
The tenant commenced this proceeding on March 1, 1988 by
filing a Statement of Complaint of Decrease in Services wherein she
alleged the following services deficiencies:
1. Front door in need of painting over sill,
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2. Entrance door in need of painting,
3. Foyer wall near entrance door scratched and in need
of painting,
4. Foyer wall near bathroom and bedroom needs plaster
and painting,
5. Bathroom door sill rotted,
6. Loose floor tiles,
7. Living room window hard to open,
8. Dining rooms windows defective,
9. Bedroom window hard to open,
10. Bedroom wall breaking under windows and requires
fixing,
11. Bedroom wall has cracks and peeling paint,
12. Toilet not working due to plaster and tape being
dropped inside,
13. Bathroom wall above shower in need of fixing,
14. Toilet seat broken,
15. Bathroom washbowl lift in need of adjustment,
16. Bathroom air vent needs cleaning,
17. Bathroom door needs painting,
18. Kitchen ceiling has leak,
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19. Kitchen light fixture needs cover,
20. Kitchen cabinet lock in need of adjustment,
21. Window screens missing,
22. Bathroom hot and cold water faucets need switching
to correct components,
23. Windows throughout apartment are unsafe and
difficult to operate,
24. Bedroom walls near closet scratched and in need of
painting.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on March 30,
1988 and stated the following:
1. The front door and door sill were painted,
2. The owner did not have knowledge of the scratched
foyer wall but would investigate,
3. The foyer wall near the bathroom and bedroom were
painted and plastered as confirmed by a DHCR
inspection conducted in another proceeding in
March, 1988,
4. The bathroom door sill was replaced as confirmed by
the inspection described above,
5. Prior DHCR physical inspection confirmed that floor
tiles were not loose but the owner stated it would
reinspect to determine if there were new problems,
6. The living room, dining room and bedroom windows
were repaired as confirmed in the DHCR physical
inspection conducted in March, 1988,
7. The bedroom wall was repaired as confirmed by the
DHCR inspection described above,
8. The toilet has been repeatedly inspected by the
DHCR and found to be operating properly,
9. The bathroom wall above the shower has been
repaired,
10. A new toilet seat has been ordered,
11. A new bathroom sink and vanity were installed and
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the owner will reinspect to see if there are
problems,
12. The bathroom door has been painted,
13. No leak in the kitchen has ever been found by DHCR
after repeated inspections,
14. A cover has been ordered for the kitchen light
fixture,
15. The owner stated it had no prior knowledge about
the kitchen cabinet lock but said it would inspect
and make repairs,
16. All window screens have been replaced,
17. The March, 1988 DHCR inspection found that the hot
and cold water faucets were properly labeled,
18. The apartment windows have been inspected by the
DHCR and found to be working properly.
The owner further stated that many of the tenant's complaints were
ones which were the subjects of prior proceedings, that the DHCR
had found no services decreases at the time of those proceedings,
that many items in this complaint were duplicative and that the
tenant has refused to grant access for the owner to investigate the
complaints and make repairs.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on June 17, 1988 and
revealed the following:
1. Bathroom ceiling and walls have peeling paint and
plaster,
2. Two living room, two dining room and two bedroom
windows are defective,
3. Kitchen light fixture has missing dome,
4. Two kitchen cabinet doors do not stay closed,
5. Bathroom sink drain inoperative.
The following services were found to have been maintained:
1. No evidence of defective apartment entrance door,
2. No evidence of defective bathroom door,
3. No evidence of defective foyer floor tiles,
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4. Toilet operative,
5. Bathroom vent operative,
6. Bathroom light fixture operative,
7. No evidence of defective faucets.
The Administrator issued the order here under review on July
29, 1988 and ordered a rent reduction of an amount equal to the
most recent guideline adjustment based on the report of the
inspector.
Both the owner and tenant have filed appeals from the
Administrator's order. The owner states the following:
1. The finding regarding the bathroom sink drain is
not based on any part of the complaint of the
tenant,
2. The tenant has refused to allow access to the owner
to make any repairs,
3. The inspection was conducted without notice to the
owner nor an opportunity to be present. The owner
claims that its right to due process of law was
violated by this failure,
4. The conditions reported by the inspector were all
reported corrected in prior DHCR proceedings
instituted by the tenant or were minor conditions
not warranting a rent reduction.
The owner attached exhibits to the petition. Some of the exhibits
documented the owners alleged attempts to gain entry to the subject
apartment. Other exhibits documented the owner's alleged attempts
to make repairs once access had been obtained.
The tenant filed a response to the petition on November 4,
1988 wherein she denied ever refusing access to the owner's
personnel. The owner filed a reply on November 29, 1988 wherein it
essentially restated its claims that the tenant was denying access
and was filing frivolous complaints in an attempt to avoid paying
rent. A further reply, to the same effect, was filed by the owner
on December 5, 1988. On December 8, 1989 the owner filed a
supplement to the petition. The supplement consisted of copies of
papers filed in an action brought by the owner against the tenant
in Housing Court. This submission was a further attempt to
document the claim that the tenant refused to give access. The
owner's final submission to the Commissioner was filed on January
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11, 1989 wherein it argued that it had made numerous good faith
efforts to upgrade the premises and that the tenant continues to
file complaints seeking rent reductions after DHCR determinations
were issued finding that her complaints are without merit.
In her petition for administrative review the tenant states
that the Administrator failed to make findings with regard to the
following:
1. Peeling paint and plaster on the kitchen ceiling,
2. Peeling paint, scratches and dirt on bedroom wall,
3. Foyer wall scratched, dirty and blistering,
4. Bathroom air vent in need of cleaning,
5. Bathroom sprinklers placed on incorrect components,
6. Entrance front door scratched and dirty,
7. Entrance front door sill in need of repair.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the owner's petition should be
granted in part and that the tenant's petition should be denied.
With regard to the tenant's petition the Commissioner has
reviewed the report of the DHCR inspector. The report contains a
notation to the effect that peeling paint and plaster were found
only in the bathroom. The inspector also reported that the front
door was not defective, that the bathroom air vent was operating,
and that the faucets were installed correctly. The report of the
inspector is entitled to more probative weight than the assertions
of the tenant. Her petition for administrative review is,
therefore, denied.
With regard to the owner's petition, the Commissioner finds
three of the four stated grounds to be without merit. Despite the
numerous attempts made by the owner to document the fact that the
tenant was refusing access, the Commissioner notes that by the
owner's own admission, access to the apartment was obtained on
several occasions. It was the duty of the owner to make
workmanlike repairs to the apartment on those occasions. The
report of the DHCR inspector clearly sets forth the problems in the
apartment. As noted above, this report is entitled to more
probative weight than the statements of either party herein. The
Commissioner notes that the owner has submitted copies of letters
and mailgrams, dated in 1985, 1986 and August, 1989 submitted in
other proceedings, wherein the owner demanded that the tenant
provide access to the owner's representatives. The Commissioner
further notes, however, that said documentation either predates the
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complaint or postdates the Administrator's order. Therefore, this
documentation is irrelevant in the consideration of whether the
Administrator was correct in issuing the order here under review.
Moreover, the tenant disputes the owner's allegations, claiming
that the owner makes appointments for access but no one appears.
The tenant asserts she missed many days of work because of this and
her job is in jeopardy as a result.
With regard to the owner's claim that it was entitled to
notice of the inspection and the right to be present, numerous
prior decisions of the Commissioner have held that due process
requires only that the owner be served a copy of the complaint in
order to put it on notice of the defective conditions in the
apartment. There is no due process right to notice of the
inspection and the opportunity to be present. The courts have
upheld this policy (see Empress Manor Apartments v. DHCR 147 A.D.2d
642, 538 N.Y.S.2d 49 [2nd Dept., 1989]).
The Commissioner also rejects the owner's assertion that the
conditions cited in the Administrator's order are either too minor
or have been found maintained in other DHCR proceedings. Pursuant
to Section 2523.4 of the Rent Stabilization Code, a tenant may
apply to the DHCR for a rent reduction based on decreased services
and the Administrator shall reduce the rent if it is found that the
said services are, in fact, not being maintained. Pursuant to
Section 2520.6 (r) of the Code, repairs and maintenance fall within
the definition of required services. The Commissioner finds that
the Administrator based this determination on the entire record
including the results of the on-site physical inspection conducted
on June 17, 1988. It is irrelevant that prior DHCR orders have
found the owner to be maintaining the services which are the
subject of this order. The duty of the owner to maintain required
services is ongoing. Furthermore, prior orders of the Commissioner
have held that peeling paint and plaster, defective windows,
missing fixtures and defective closets are conditions for which a
rent reduction is warranted.
The Commissioner agrees, however, that the Administrator was
incorrect in ordering a rent reduction for the bathroom sink drain.
The tenant stated in her complaint that the "wash bowl lift"
required adjustment. The inspector found that the bathroom sink
drain was defective. It was unclear from the tenant's complaint
that the drain was the condition being complained of. Based on
this ambiguity, the Commissioner finds that the owner was not on
notice of this condition. The owner's petition is granted in part
and the order here under review is modified to delete this finding.
Any future applications for rent restoration filed by the owner
need not allege that this condition has been corrected. The order
here under review is affirmed as modified. The tenant may file
another complaint giving a clearer explanation of this condition if
it remains uncorrected.
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THEREFORE, pursuant to the Rent Stabilization Law and Code it
is
ORDERED, that the petition for administrative review filed by
the tenant be, and the same hereby is, denied, and it is further
ORDERED, that the petition for administrative review filed by
the owner be, and the same hereby is, granted in part and that the
Rent Administrator's order be, and the same hereby is, affirmed as
modified herein.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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