CF410084RO
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
----------------------------------x
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: CF410084RO
JOSEPH PECORARO RENT
ADMINISTRATOR'S DOCKET
NO.: CB410131S
PETITIONER
----------------------------------x
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND REMANDING PROCEEDING TO RENT ADMINISTRATOR
On June 3, 1988 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued May 9, 1988. The order concerned housing
accommodations known as Apt 3-FS located at 1431 First Avenue, New
York, N.Y. The Administrator established the tenant's rent at
$1.00 per month pursuant to Section 2522.6 of the Rent
Stabilization Code based on the fact that the tenant had to
involuntarily vacate the subject apartment after a fire.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The tenant commenced this proceeding on February 19, 1988 by
filing a Statement of Complaint of Decrease in Services and stated,
in sum, that the subject apartment had been rendered uninhabitable
as the result of a fire on February 17, 1988.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on March 12,
1988 and stated, in sum, that water, heat and temporary electricity
had been restored to the apartments in the building, that other
repairs were in progress and that the owner was willing to accept
a rent of $1.00 for the month of March.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on March 25, 1988. The
inspector reported that gas was not being provided, that 2 living
room, 2 kitchen and 1 bathroom windows were boarded up with
plywood, that the living room, kitchen and bathroom were in need of
painting due to smoke damage and that there was broken plaster on
the bathroom ceiling. The inspector reported that the tenant was
CF410084RO
still in occupancy.
The Administrator issued the order here under review on May 9,
1988 and established the tenant's rent at $1.00 per month effective
February 17, 1988, the date of the fire.
On appeal the owner, as represented by counsel, states that
the owner was not given a full and fair opportunity to be heard in
that, on April 27, 1988 the owner's attorney submitted a request to
be given until May 2, 1988 to file a supplementary answer but the
Administrator issued the order here under review on May 9, 1988.
The owner further states that a rent reduction was not warranted
because the apartment was never rendered uninhabitable and because
the tenant was subjected to "minor inconveniences" in service
reductions. Finally, the owner states that the service reductions
found by the Administrator were de minimis and promptly corrected
by March 27, 1988. The petition was served on the tenant.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be granted
in part.
The order appealed herein was issued pursuant to Section
2522.6 of the Code which authorized the DHCR to establish the legal
regulated rent in certain situations. The rent was established at
$1.00 per month based on the erroneous conclusion that the tenant
had been forced to vacate the apartment because of a fire.
However, since the inspector found that the tenant was in
occupancy, establishing the rent at $1.00 was not appropriate.
Section 2523.4 of the Code requires the Division to order a
rent reduction to the level in effect prior to the most recent
guidelines adjustment 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) as that space and those services
which the owner was maintaining or was required to maintain on the
applicable base date including repairs, decorating and maintenance.
Pursuant to Section 2523.4, the Rent Administrator was
required to order a rent reduction to the level in effect prior to
the most recent guidelines adjustment based on the conditions
requiring repair described in the inspector's report. On remand,
the Administrator should issue such a rent reduction order,
effective March 1, 1988, the first rent payment date following
service of the complaint on the owner.
However, because a stay of the prospective application of the
Administrator's order was granted by the Commissioner on August 2,
1988, pursuant to the owner's request, the owner may reasonably
have concluded that the filing of a rent restoration application
was not warranted or appropriate. Accordingly, on remand, the
Administrator should investigate by means of a hearing if
CF410084RO
necessary, when the conditions described by the inspector's report
were corrected and order the rent restored as of that date.
With regard to the owner's argument that it was not given a
full and fair opportunity to be heard, the Commissioner notes that
the owner filed an answer on March 12, 1988 wherein it agreed to
accept a rent of $1.00 for the month of March based on the
admission that services had been disrupted. The owner's April 27,
1988 request for additional time to answer was received by the
Administrator only after the order was issued.
With regard to the owner's argument that the service
reductions were de minimis in nature, the Commissioner finds that
the fact that the tenant did not have gas in the apartment that the
windows were boarded up and that painting and plastering was
required throughout the apartment can not be charactorized as
"minor inconveniences".
THEREFORE, pursuant to the Rent Stabilization Law and Code it
is
ORDERED, that this petition be, and the same hereby is,
granted in part, and that this proceeding be, and the same hereby
is, remanded to the Rent Administrator for further processing
consistent with this order and opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
|
