CB130246RO
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
APPEAL OF DOCKET NO.:
CB130246RO
REY CAL REALTY CORP.,
c/o RAMON REYES, RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONER BJ130016HW
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 25, 1988, the above-named petitioner-owner filed a
petition for administrative review (PAR) of an order issued on
January 20, 1988, by the Rent Administrator, concerning housing
accommodations known as 88-06 Parsons Boulevard, Jamaica, New York,
Various Apartments, wherein the Administrator determined that a
reduction in rent was warranted based upon a reduction in heat and
hot-water services. The rent for rent-controlled apartments was
reduced by 7«% per month, effective on the first rent payment day
following the issuance date of the order and the rent for rent-
stabilized apartments was reduced by the most recent guidelines
adjustment.
The Rent Administrator also directed full restoration of services.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the administrative appeal.
The issue herein is whether the Rent Administrator properly reduced
the rents of the subject apartments.
On October 7, 1987, tenants of 53 of the 60 apartments in the
subject building joined in filing a complaint alleging that the
owner filed to maintain certain building-wide services.
One aspect of the complaint, alleging inconsistent and insufficient
heat, was processed separately in accordance with Division policy.
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The owner filed an answer to the complaint on December 3, 1987,
alleging in pertinent part, that the boiler and burner equipment
are in proper working order and heat is supplied as required by
law.
A Division of Housing and Community Renewal (DHCR) inspection
revealed that the owner failed to maintain heat and hot-water
services in the apartments inspected on December 10, 1987 and
December 11, 1987. The inspector was able to gain access to 40
apartments and although some had adequate heat, every apartment had
either inadequate hot water or no water at all.
On appeal, the petitioner-owner asserted, in pertinent part, that
heat and hot-water services were actually corrected prior to the
issuance of the Rent Administrator's order; that the Rent Admin-
istrator erred by issuing a determination without having conducted
a hearing and that the appealed order is arbitrary and capricious
because the inspector failed to inspect all 52 apartments affected
by the order.
The petition was served on the tenants on April 28, 1988.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
Pursuant to Section 2523.4 of the Rent Stabilization Code, a tenant
may apply to the Division of Housing and Community Renewal (DHCR)
for reduction of the legal regulated rent to the level in effect
prior to the most recent guidelines adjustment, and the DHCR shall
so reduce the rent for the period for which it is found that the
owner has failed to maintain required services.
Required services are defined in Section 2520.6(r) to include re-
pairs and maintenance.
Section 2202.16 of the Rent and Eviction Regulations provides that
an owner's failure to maintain services may result in an order of
decrease in maximum rent, in an amount determined by the discretion
of the Rent Administrator.
Housing Maintenance Code regulations relating to supply of heat and
hot-water provide as follows:
Section 27-2028 Minimum temperature to be maintained:
a. During the period from October 1 through May
31, centrally-supplied heat, in any dwelling
in which such heat is required to be provided,
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shall be furnished so as to maintain, in every
portion of such dwelling used or occupied for
living purposes:
1. Between the hours of 6:00
a.m. and 10:00 p.m., a
temperature of at least
68 degrees Fahrenheit
whenever the outside tem-
perature falls below 55
degrees; and
2. Between the hours of
10:00 p.m. and 6:00 a.m.,
a temperature of at least
55 degrees Fahrenheit
whenever the outside tem-
perature falls below 40
degrees.
Section 27-2031 Supply of hot water when required:
Except as otherwise provided in this article,
every bath, shower, washbasin and sink in any
dwelling unit in a multiple dwelling . . . . .
. . . . . shall be supplied at all time (bet-
ween the hours of six a.m and midnight) with
hot water at a constant minimum temperature of
120 degrees Fahrenheit from a central source
constructed in accordance with provisions of
the building code and the regulations of the
department.
A review of the file shows clearly that the owner failed to provide
heat and hot-water services to a preponderance of those apartments
inspected on December 10, 1987 and December 11, 1987. The results
of the inspection confirm the tenants' complaint that the owner
failed to meet the standard set forth in Sections 27-2028 and 27-
2031 of the Housing and Maintenance Code.
The owner did not submit any evidence that the heat and hot-water
deficiencies noted on the inspector's report were completed in a
workmanlike manner at the time of the DHCR's inspection or at any
time prior to the issuance of the Administrator's order.
Additionally, error was not committed by the Rent Administrator, by
its failure to conduct a hearing because the scheduling of hearings
is a matter for the sole discretion of the Administrator.
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The Commissioner has also considered and rejects the petitioner's
argument that the appealed order is arbitrary and capricious
because the inspector failed to inspect all 52 apartments affected
by the appealed order.
A review of the file shows that 53 of the 60 apartments in the
building joined in filing the instant complaint and that the in-
spector gained access to 40 of those apartments. The lack of
adequate hot water in every apartment inspected adequately supports
a determination that there was a systemic defect affecting service
on a building-wide basis.
The Commissioner finds that the Administrator properly based his
determination on the entire record, including the results of the
on-site physical inspections conducted on December 10, 1987 and
December 11, 1987, and that pursuant to Section 2523.4(a) of the
Code, and Section 2202.16 of the Rent and Eviction Regulations, the
Administrator was mandated to reduce the rents upon determining
that the owner had failed to maintain services.
Accordingly, the Commissioner finds that the owner has offered
insufficient reason to disturb the Rent Administrator's determina-
tion.
The Division's records reveal that the owner's rent restoration
application was granted on October 19, 1988 (Docket No.
CC130137OR).
As regards the rent stabilized apartments, the automatic stay of
the retroactive rent abatement that resulted by the filing of this
petition is vacated upon issuance of this order and opinion.
THEREFORE, in accordance with the provisions of the Rent Stabili-
zation Law and Code, and the Rent and Eviction Regulations for
New York City, it is
ORDERED, that the owner's 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
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