CA130120RO


                                  STATE OF NEW YORK
                      DIVISION OF HOUSING AND COMMUNITY RENEWAL
                            OFFICE OF RENT ADMINISTRATION
                                     GERTZ PLAZA
                                  92-31 UNION HALL
                                  JAMAICA, NY 11433





          ------------------------------------x
          IN THE MATTER OF THE ADMINISTRATIVE          ADMINISTRATIVE REVIEW
          APPEALS OF                                   DOCKET NOS.:
                                                       CA130120RO
                                                       CA130287RO
                                                       DE130207RO
                    Anurag Supermarket,

                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NOS.:
                                                       BC130089B
                                                       CH130100OR
                                   PETITIONER
          ------------------------------------x

          ORDER AND OPINION GRANTING, IN PART, PETITIONS FOR ADMINISTRATIVE 
               REVIEW AND REMANDING PROCEEDINGS TO RENT ADMINISTRATOR 
                              FOR FURTHER CONSIDERATION

          The above-named owner filed timely petitions for administrative 
          review of orders issued by the Rent Administrator concerning the 
          housing accommodations known as 162-05 89th Avenue, Queens, 
          New York, wherein the Rent Administrator determined the tenants' 
          complaint of decreased building-wide services, and the owner's rent 
          restoration application.

          The Commissioner has reviewed all the evidence in the record and 
          has carefully considered the portions of the record relevant to the 
          issues raised by the petitions.

          Various tenants commenced these proceedings by filing a complaint 
          asserting that the owner had failed to maintain certain services in 
          the subject premises.

          In an answer, the owner denied the allegations set forth in the 
          complaint or otherwise asserted that all required repairs had been 
          or will be completed.
















          CA130120RO

          Thereafter, an inspection of the subject premises was conducted by 
          a DHCR inspector who reported two elevators that did not level and 
          doors on the elevators that did not open and close properly, no 
          awning at the main entrance, electrical wiring in the front and 
          side of the exterior of the building, evidence of vermin 
          infestation in the basement, no superintendent on the premises and 
          lack of janitorial services and general upkeep, dirty public area 
          windows, broken mailboxes and unlocked lobby doors.

          The Rent Administrator directed restoration of these services and 
          further, ordered a reduction of the tenants' rents.

          In the petition for administrative review of the rent reduction 
          order, the owner requested reversal of the order on various 
          grounds.  The owner's petition was inadvertently assigned  separate 
          dockets per Docket Nos. CA130120RO and CA130287RO.

          On appeal, as below, the owner disputed that there was ever an 
          awning at the main entrance of the building.  The owner also 
          reiterated that regularly scheduled elevator maintenance and 
          extermination programs promptly addressed services problems arising 
          in this regard, and that an on-premises superintendent and a porter 
          provided adequate janitorial services and cleaned the premises on 
          a daily basis.

          The owner asserted that the exterior wiring was a temporary 
          condition required in connection with electrical work.  The owner 
          further asserted that this condition, as well as the broken 
          mailboxes and the lobby door defects that left the entrance 
          unlocked, were corrected prior to the issuance of the rent 
          reduction order.

          The owner also alleged a denial of due process because the Rent 
          Administrator did not conduct a hearing in the proceedings below.

          In addition to the petition for administrative review, the owner 
          also filed a rent restoration application, asserting that required 
          services were being provided, and reiterated that there had never 
          been an awning at the main entrance.

          The tenants responded that the owner had the awning frame removed 
          rather than having the canopy replaced.

          An inspection conducted on January 30, 1989 by a DHCR inspector 
          disclosed that one elevator was disabled, that the first floor door 
          of the second elevator door was broken, and that there was no 
          awning at the time of inspection.  The inspector found that other 
          repairs had been completed.


          On April 12, 1989, the Rent Administrator issued an order that 
          denied the owner's application to restore the stabilized tenants' 






          CA130120RO

          rent.  Orders were issued to the owner and to rent stabilized 
          tenants only.  The owner had not requested rent restoration for the 
          rent controlled tenants.

          In the petition for administrative review appealing the order 
          denying the owner's application, the owner reiterates the previous 
          assertions that the elevators at the subject building are properly 
          maintained, and that there was never an awning at the main 
          entrance; also arguing that the condition was de minimis in any 
          event.  The owner also argues that the owner's right to due process 
          was violated because the inspection was conducted without affording 
          the owner notice of the inspection or an opportunity to comment on 
          the results.

          The tenants' answers to the petition, and the owner's reply thereto 
          reiterate the parties' previous statements.  With the reply, the 
          owner submitted invoices detailing several elevator repairs and 
          scheduled maintenance visits, and signed statements from several 
          tenants to the effect that no awning had been provided during the 
          term of their tenancies.  A photograph of an awning frame without 
          a canopy was submitted by a tenant.

          After careful consideration the Commissioner is of the opinion that 
          the owner's petitions should be granted in part.

          Pursuant to Section 2523.4 of the Rent Stabilization Code, DHCR is 
          required to order a rent reduction, upon application by a tenant, 
          where it is found that an owner has failed to maintain required 
          services.  Pursuant to Section 2202.16 of the Rent and Eviction 
          Regulations, the Rent Administrator may impose a rent reduction if 
          there has been a decrease in essential services, furnishings or 
          equipment, among other things.

          The tenants' allegation below that the owner eliminated the awning 
          frame and canopy was not sufficient to conclude that the awning was 
          provided, absent other evidence.  The DHCR inspection reports 
          confirmed only that no awning was found at the time of inspection.  
          However, the tenants are entitled to further investigation of their 
          allegations in the complaint.  Consequently, the matter should be 
          remanded to the Rent Administrator for further consideration.  

          Concerning the elevators, the Commissioner notes that the DHCR has 
          the requisite authority to render a determination and that the 
          evidence of record is sufficient to let stand the Rent 
          Administrator's findings regarding the elevators.
           


          The owner's claim that it was denied due process, because the 
          Administrator failed to hold a hearing in the rent reduction 
          proceedings, is without merit.  The DHCR is not required to hold 
          hearings.  The decision to do so is left to the Rent 












          CA130120RO

          Administrator's sound discretion.  All that is required is that the 
          parties have notice of the proceedings and the opportunity to 
          present their position.  Also, notice of the inspections or of the 
          results thereof was not required in either the rent reduction or 
          the rent restoration proceedings.  The owner was afforded the due 
          process notice it was entitled to by service of the tenants' 
          complaint and responses.

          Evidence submitted by the parties in the administrative review 
          proceedings could not be considered as it was beyond the scope of 
          review which is strictly limited to the evidence and issues 
          presented to the Rent Administrator for consideration.

          The owner's petitions do not establish any further basis for 
          modifying or revoking the Rent Administrator's orders.

          The automatic stay of the retroactive rent abatement that resulted 
          by the filing of the petition appealing the rent reduction order is 
          vacated upon issuance of this order and opinion.

          THEREFORE, in accordance with the Rent Stabilization Law and Code 
          and the Rent and Eviction Law and Regulations for the City of 
          New York, it is,

          ORDERED, that the petitions be, and the same hereby are granted in 
          part, to the extent of remanding the proceedings to the Rent 
          Administrator to reconsider the awning issue in both the rent 
          reduction and the rent restoration proceedings.  In all other 
          respects, the Rent Administrator's orders are affirmed.            
                        
                   


          ISSUED:


                                                                     
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner  
    

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