CD630207RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NY 11433
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.:
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CE620080RT
Grace DiTomaso, Petitioner-owner
and
Walter Ganz, Petitioner-tenant
RENT ADMINISTRATOR'S
DOCKET NOS.:
BJ630002OR
BG630050OR
PETITIONER
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ORDER AND OPINION GRANTING, IN PART, OWNER'S PETITION
FOR ADMINISTRATIVE REVIEW AND TERMINATING, AS MOOT,
TENANT'S PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner and tenant filed timely petitions for
administrative review of orders issued by the Rent Administrator
concerning the housing accommodations known as 1560 Silver Street,
Bronx, New York, wherein the Rent Administrator determined the
owner's applications to restore rent previously reduced per Docket
No. B003398B.
The Commissioner has reviewed all the evidence in the record and
has carefully considered those portions of the record relevant to
the issues raised by the petitions.
The Rent Administrator had reduced the tenants' rent (B003398B)
based on findings of defective front and rear entrance door locks
and inadequate janitorial maintenance in the building in that the
public hallways were not cleaned.
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In an order dated September 25, 1987, the Rent Administrator
granted the owner a partial rent restoration (AJ620073OR) of $8.00
per month for rent controlled tenants, effective October 1, 1987,
based on findings that the front and rear door locks had been
repaired and were operating properly. The Rent Administrator
otherwise denied rent restoration for both rent controlled and rent
stabilized tenants based on a finding that an inspection revealed
that the courtyard and outside areas of the building were not
clean; these conditions had not been cited in the underlying rent
reduction order. The inspector had also reported that the area in
the building near the rear door was filthy, although it was not
cited in the denial order. There is no record of an administrative
appeal by either the owner or the tenants.
The owner also filed a separate rent restoration application
pursuant to notice from DHCR's Compliance Unit that an inspection
had revealed that the owner had complied with the directive to
correct the conditions cited in the underlying rent reduction
order. A new case docket was established under Docket No.
BG630050OR although the initial rent restoration proceeding
(AJ620073OR) was still pending at the time.
The owner filed yet another rent restoration application in October
1987 asserting that the courtyard exterior area litter, cited in
the September 25, 1987 order (AJ620073OR), had been cleaned. The
application was assigned a separate case docket (BJ630002OR)
although the previous application (BG630050OR) was then pending.
The Rent Administrator issued an order on March 18, 1988,
(BJ630002OR) which again denied rent restoration, based on the
results of a January 28, 1988 inspection that found that the public
halls were littered with paper, that the exterior areas of the
building were littered with trash from uncovered garbage cans and
that the rear building door and lock were defective. The order
also referred to a rent reduction order per Docket No. AL630023B.
(DHCR records show that a rent restoration order was issued on July
12, 1988 per Docket No. BJ630003OR restoring rent previously
reduced per Docket No. AL630023B). The owner filed an
administrative appeal challenging the denial order.
The Rent Administrator issued another order on April 19, 1988,
(BG630050OR) that granted a partial rent restoration of $9.00 per
month for rent controlled tenants based on findings that the front
and rear door locks had been repaired. The Rent Administrator's
order again denied rent reduction for rent controlled and rent
stabilized tenants based on the results of an inspection conducted
on January 5, 1988 that found that the public hallway areas
required cleaning. One tenant filed a timely administrative
appeal challenging the partial rent restoration, on grounds more
fully set forth below.
In its petition, the owner asserts that the rent should have been
restored effective November 1, 1986, in the initial rent
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restoration proceeding, as evidenced by the Compliance Bureau
inspection. The owner also argues that the conditions pertaining
to the exterior of the building should not have been considered in
reviewing the owner's application for restoration of rent, as they
were not the basis of the rent reduction order. The owner
continues that it should not be penalized for the (alleged) delay
in processing the owner's rent restoration applications, and that
in light of such delays, the conditions which did exist were new
conditions which did not relate back to the original complaint.
The owner further contends single inspections in individual
proceedings do not show a course of conduct in failing to maintain
janitorial services.
After careful consideration, the Commissioner is of the opinion
that the owner's petition should be granted in part.
In the rent restoration proceedings herein under appeal by the
owner (BJ630002OR), the tenants did not consent to have the rent
restored, and in fact, challenged the owner's application. The
Rent Administrator processed the application in accordance with the
normal procedures for a challenged application.
The owner's request to restore rent effective November 1, 1986
constitutes an impermissible collateral attack of the prior final
order (AJ620073OR). While the Compliance Bureau's inspection
showing that the hallway areas were clean was conducted while the
initial rent restoration proceedings (AJ620073OR) were pending, the
owner did not seek administrative review of the Rent
Administrator's order. Consequently, the determination
(AJ620073OR) became final and an appeal thereof is time barred. It
is also noted that the Compliance letter that advised the owner to
file the (second) application was not an order and is not subject
to administrative appeal.
Concerning the findings in BJ630002OR, the Commissioner notes that
the rear building door lock condition found constituted a new
condition since the prior determination (AJ620073OR) had found the
building's front and rear door locks to have been repaired and
restored the rent for these items. The rear door lock defect, the
litter conditions found outside the building and in the courtyard,
and the rear door defects did not relate back to the underlying
rent reduction order, and could not be considered in processing the
owner's application for rent restoration. Therefore, these
conditions are hereby revoked as grounds for denying rent
restoration.
However, the findings cited in the underlying rent reduction order
that janitorial services were inadequate and the order denying rent
restoration, that the hallways required sweeping and mopping, are
not new conditions. They are conditions that recur if janitorial
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services are not sufficiently frequent and adequate to keep the
public areas clean. The Rent Administrator properly relied on
the results of the inspection to deny rent restoration.
The owner also urges that a single inspection does not show a
course of conduct in failing to maintain janitorial services. It
is noted, however, that a number of inspections found that the
public areas were in need of sweeping and mopping.
The tenant's petition for administrative review challenges the Rent
Administrator's partial restoration order (BG630050OR) pointing out
the inconsistencies with the determination under BJ630002OR which
found additional defective conditions. However, the tenant's
petition has been rendered moot by reason of the instant
determination, which amends the Rent Administrator's order
(BJ630002OR), but otherwise properly affirms the Rent
Administrator's order insofar as to deny further rent restoration,
on the grounds that an inspection found the building's interior
public areas in need of sweeping and mopping.
DHCR records also reveal that title to the property has been
transferred to a new owner, who is to be served a copy of this
order.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
and the City Rent and Eviction Law and Regulations, it is
ORDERED, that the owner's petition be, and the same hereby is,
granted, in part, and that the Rent Administrator's order
(BJ630002OR) be, and the same hereby is amended to revoke the rear
door and lock and litter conditions outside the building as bases
for denying rent restoration. In other respects, the Rent
Administrator's order is affirmed. It is further
ORDERED, that the tenant's petition be, and the same, hereby is
terminated as moot, in accordance with the above.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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