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.: CA430053RT
MARCIA LACH C/O ROSE ANN MAGALDI RENT
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 21, 1988 the above named petitioner-tenant
representative filed a Petition for Administrative Review against
an order of the Rent Administrator issued December 16, 1987
concerning the housing accommodations known as various apartments,
945 Fifth Avenue, New York, NY, wherein the Administrator denied
the tenants' complaint based on a finding that adequate heat and
hot water services were being provided.
The Commissioner has carefully reviewed all the evidence of record
and has carefully considered that portion relevant to the issues
raised on appeal.
A review of the record reveals that in July 1987, twelve tenants in
this 107 unit building joined in filing a complaint alleging in
relevant part that the owner had failed to provide adequate heat
and hot water services on various days between January and April
A DHCR inspector visited the building on October 7 and 26, 1987.
Of the twelve complaining tenants, the inspector gained access to
six apartments and was advised by the tenants that the hot water
temperature was OK or that the tenants had never made a complaint.
The remaining six apartments did not provide access.
The tenant representative was informed on November 17, 1987 that
the inspector reported that he had been told that the conditions
complained of had been corrected. In response, a representative
stated that the problem with the heat and hot water occurs only
during periods of extremely cold temperatures.
The order appealed herein was issued on December 16, 1987 denying
the tenants' complaint which order included a warning to the
landlord to provide adequate heat and hot water service.
In the petition for administrative review, the tenants, through
counsel, assert that they were denied due process because they were
not served with a copy of the owner's answer, that one physical
inspection before the heating season commenced was insufficient to
resolve this complaint of a lack of heat and hot water services
which continues to exist, that a hearing should have been held, and
that a rent reduction should have been ordered.
In answer to the petition, the owner, through counsel, alleges that
the tenants were not denied due process because no answer to the
complaint was submitted by the owner, that the order was properly
based on inspections in October because heating season begins
October 1, and that it was within DHCR's discretion to determine
the tenants' complaint without a hearing.
After careful consideration of the entire evidence of record, the
Commissioner is of the opinion that the petition should be denied.
Section 2523.4 of the Rent Stabilization Code requires the Division
to order a rent reduction, upon application by a tenant, where it
is found that the owner has failed to maintain required services.
Required services are defined in Section 2520.6(r) to include heat
and hot water services.
For rent controlled tenants, Section 2202.16 of the Rent and
Eviction Regulations authorizes a rent reduction where there has
been a decrease in essential services which include heat and hot
The evidence of record supports the Administrator's determination
that a rent reduction was not warranted. A review of the record
confirms that the owner did not submit an answer to the complaint
and the tenants were therefore not deprived of any due process
rights. The Rent Administrator's order was properly based on the
results of two physical inspections during the heating season
which revealed that adequate services were being provided. If the
problems alleged in the complaint persist as the tenants allege, a
subsequent complaint could have been filed but the Division's
records reveal that there have been no such complaints.
The decision to hold a hearing to resolve a complaint is within the
discretion of the Rent Administrator and the Commissioner is of the
opinion that it was not an abuse of discretion to decline to have
a hearing in this case which was suitable for determination by
means of physical inspection. The tenants have not established any
basis for modifying or revoking the Administrator's determination
that a rent reduction is not warranted.
Therefore in accordance with the Rent Stabilization Law and Code
and the Rent and Eviction Regulations for New York City, it is
ORDERED that this petition be and the same hereby is denied and the
Rent Administrator's order be and the same hereby is affirmed.
JOSEPH A. D'AGOSTA