CI130123RO
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.: CI130123RO
RENT
BKL MANAGEMENT CORP. ADMINISTRATOR'S DOCKET
NO.: CA130209OR
PETITIONER
----------------------------------x
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 20, 1988 the above named petitioner-owner filed
a Petition for Administrative Review against an order of the Rent
Administrator issued August 17, 1988. The order concerned various
housing accommodations located at 42-15 43rd Avenue, Sunnyside,
N.Y. The Administrator ordered partial rent restoration for rent
controlled tenants of the building and denied the owner's
application for rent restoration for rent stabilized tenants .
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The owner commenced this proceeding on July 27, 1987 by filing
an Application for Rent Restoration wherein it alleged that it had
restored services for which a rent reduction order had been issued
by the Administrator (see Docket No. AK 130035 B). In that rent
reduction order, the Administrator had ordered the rent of rent
controlled tenants reduced by $20.00 per month and the rent of rent
stabilized tenants reduced by an amount equal to the most recent
guideline adjustment. The rent restoration application was served
on the tenants. Numerous responses were received from the tenants
wherein they objected to the granting of the owner's application,
claiming that services had not been restored.
The Administrator ordered a physical inspection of the
subject building. The inspection was conducted on May 26, 1988 and
revealed the following:
1. Roof level walls and chimney walls are not cracked
and loose,
2. Laundry rooms, terrazzo floors and hallway stairs
are not dirty,
CI130123RO
3. No evidence of uneven sidewalks.
The inspector also reported that repairs had not been completed to
cracked hallway window panes and defective or missing window
handles throughout the building. Furthermore, the bulkhead walls
and ceilings were found to have peeling paint and plaster and be
blistered and discolored due to leakage.
The Administrator issued the order here under review on August
17, 1988 and partially granted the owner's application with respect
to rent controlled tenants. Rent restoration of $8.00 per month
was ordered to be effective September 1, 1988. The owner was
advised to refile for the remaining $12.00 per month when the
remaining services described above had been restored. Rent
restoration was denied for rent stabilized tenants.
On appeal the owner, through counsel, makes the following
arguments in support of its petition for administrative review:
1. The owner should have been informed of the
scheduled inspection,
2. The Administrator's order is defective in that it
does not state that all complaining tenants were
directly affected by the services decreases which
still remain to be corrected,
3. The remaining conditions do not warrant a rent
reduction.
The tenants filed a joint response on November 17, 1988
wherein they stated, in sum, that the owner had failed to repair
the remaining defects and wherein they submitted photographic
evidence in support of their position. Two tenants filed
individual responses but did not raise issues material to the
owner's allegations in the petition for administrative review. The
owner filed a reply on December 30, 1988 and stated that the
tenants had not addressed the arguments in the petition and further
stated that the petition should be granted for the reasons set
forth above.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
Addressing the owner's arguments in the order presented,
numerous prior decisions of the Commissioner have held that due
process does not require that an owner be notified of a DHCR
inspection nor does the owner have the right to be present when one
is conducted. The courts have upheld this determination (see
Empress Manor Apts. v. DHCR 147 A.D.2d 642, 538 N.Y.S.2d 49 [2nd
Dept., 1989]).
CI130123RO
Similarly, prior decisions have also held that there is no
requirement that the Administrator find that the complaining
tenants are specifically affected by the diminution in building-
wide services. The Commissioner has held that all the tenants are
entitled to properly functioning building-wide services and that
all complaining tenants are "affected" by a diminution thereof
(Accord: BD420268RO).
The owner's final argument, that the remaining conditions do
not warrant the continuation of a rent reduction, is also rejected.
The Administrator's findings in the original rent reduction order
clearly included the fact that the bulkhead walls were water
damaged and that there were various cracked hallway window panes
and broken handles. It is settled law that, in order for the owner
to obtain rent restoration, it must demonstrate that these
conditions have been corrected. The owner failed to do this. Any
attempt to argue that the remaining conditions do not warrant a
rent reduction is an impermissible collateral attack on a final
order.
In sum, the Commissioner is of the opinion that the
Administrator properly issued the order here under review based on
the entire record, including the on-site physical inspection
conducted on August 17, 1988. The order is, therefore, affirmed.
THEREFORE, pursuant to the Rent Stabilization Law and Code and
Rent and Eviction Regulations for New York City it is
ORDERED, that this petition be, and the same hereby is,
denied, and that the Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
|
