DB410269RT
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
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.: CJ410307RT
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RENT ADMINISTRATOR'S
GUDMUND BERG, DOCKET NOS.: CA430103B
CA410288S
PETITIONER
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ORDER AND OPINION GRANTING PETITIONS FOR ADMINISTRATIVE REVIEW
AND REMANDING PROCEEDINGS
On October 18, 1988 and February 3, 1989, the above-named
petitioner-tenant filed petitions for administrative review (PARs)
of orders issued on September 12, 1988 and December 30, 1988, by
the Rent Administrator, concerning the housing accommodation known
as 202 East 31st Street, New York, N.Y. Apt # 303, wherein the
Administrator determined in Docket No. CA430103B that, based on the
evidence, a rent reduction is not warranted even though the tenant
requested a rent reduction and that in Docket No. CA410288S, the
tenant's application for a rent reduction based upon a decrease in
services should be denied. In the latter proceeding, the Rent
Administrator found that the tenant did not provide apartment
access to the DHCR inspector on November 21, 1988 and November 23,
1988.
These proceedings are being consolidated as they involve common
grounds of law and fact.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered the portion of the record relevant to the
issues raised by the administrative appeals.
The issue herein is whether the Rent Administrator properly denied
the tenant's applications.
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The record in Docket NO.: CA430103B reveals that on January 28,
1988, the tenant of the subject single room occupancy (SRO)
building filed a statement of complaint of a decrease in building-
wide services in which he alleged that the water had been turned
off in the east wing of the building, that linen service and toilet
paper have been eliminated, that the bathroom floor on the third
floor is caving in, and that there is no light at the entrance to
the building.
Inspections on May 15 and August 2, 1988 revealed that there was
adequate lighting at the entrance to the building, there was water
in the east wing, there was no toilet paper throughout the building
but the inspector was unable to determine if linen service is
provided, and the floor around the toilet on the third floor was
cracked and soft.
The order issued on September 12, 1988 determined, based on the
inspector's report, that a rent reduction was not warranted, but
directed the owner to restore the toilet paper and repair the
bathroom floor.
In the petition for administrative review of this order, the tenant
asserts, in substance that the administrator failed to investigate
the claim regarding linen service and that the finding of decreased
services mandates a rent reduction.
In the second proceeding, the tenant filed a complaint on January
28, 1988 alleging that the mattress needs to be replaced, painting
and plastering needs to be done, there are holes in the floor,
there is mice infestation, and there is no water in the room.
In answer to the complaint, the owner stated that the mattress was
replaced, that cold water will be restored as soon as plumbing
repairs throughout the building are completed, and that the tenant
has refused access for other repairs or for the exterminator.
The tenant replied, through counsel, stating that the replacement
mattress is unacceptable, that the tenant was deprived of running
water for three months while plumbing repairs were being done, that
access has not been denied but has been limited to times when the
tenant could be home, and that the tenant has never been notified
that an exterminator was coming. The tenant asked that all future
correspondence be sent to his attorney.
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The Division scheduled an inspection for November 21, 1988 and sent
the tenant notice of the inspection on November 14, 1988. The
inspector could not gain access and left a letter advising that he
would return on November 23, 1988. No access was obtained then
either.
An order was issued on December 30, 1988 denying the application
and terminating the proceeding.
In the petition for review of this order, the tenant, through
counsel, states that he did receive notice of the November 21, 1988
inspector and waited outside the building for the inspector until
12:30 and then had to go to work. He said he never received any
notice of the November 23, 1988 inspection and explained that he
had asked that all communication with him be made through his
attorney because the mail delivery in his building is erratic and
unreliable in that it is distributed by the owner's employees. He
also explained that the building has no door bells and no phones
and the inspector cannot gain access unless someone waits outside
to let him in. The tenant asked that the case be remanded to the
Administrator for another inspection to be scheduled on a Thursday
or Friday when the tenant does not work and that notice be sent to
the tenant's attorney.
After careful consideration of the evidence, the Commissioner is of
the opinion that both proceedings should be remanded.
It is noted at the outset that the status of subject accommodation
cannot be determined from the record and on remand the
Administrator should investigate whether the unit is rent
controlled or rent stabilized. An appropriate rent reduction
should then be ordered for the finding based on the physical
inspection that toilet paper was not being provided to the public
bathrooms throughout the building. Because of the age of this
proceeding and the retroactive effective date of such rent
reduction, an investigation should be made as to when this service
was restored, if ever, and rent restoration should be ordered as of
that date. The complaint regarding linen service should also be
explored and a determination made by means of a hearing if
necessary, as to the nature and extent of linen service provided on
the base date, whether such service is being provided now and if
not, to order an appropriate rent reduction effective either the
month following the issuance of this order if the room is rent
stabilized or effective prospectively from the date of issuance of
the administrator's order pursuant to remand if the room is rent
controlled.
For conditions that were the subject of the individual unit
complaint, a remand is required for the purpose of scheduling
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another inspection on notice to the tenant's attorney. If the
conditions alleged in the complaint are confirmed by the Division's
inspector, a rent reduction should be ordered effective the month
following service of the complaint on the owner (February 24, 1988)
if the room is rent stabilized and prospectively from the issuance
of the order appealed herein (Dec. 30, 1988) if the unit is rent
controlled.
THEREFORE, in accordance with the Rent Control Law for New York
City, the Rent and Eviction Regulations, and the Rent Stabilization
Law and Code, it is
ORDERED, that these petitions be and the same hereby are granted to
the extent of remanding these proceedings to the administrator for
further processing in accordance with this order and opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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