CG430049RO
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.: CG430049RO
STUART MILLER
RENT ADMINISTRATOR'S
DOCKET NO.: BJ430068B
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On July 1, 1988, the above-named petitioner-owner filed a petition
for administrative review (PAR) of an order issued on June 1, 1988,
by the Rent Administrator, concerning the housing accommodations
known as 47 Jane Street, various apartments, New York, N.Y.,
wherein the Administrator determined that a reduction in rent was
warranted based upon a reduction in services.
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 rent of various rent regulated apartments in the subject
building.
On October 20, 1987, the tenants filed a complaint alleging that
the owner failed to maintain services.
DHCR inspections conducted on February 11, 1988 and February 16,
1988, revealed that:
1. Public area: filthy, unswept and unmopped.
2. Inadequate garbage collection. Garbage accumu-
lation in public areas, strewn about stairs and
floors.
3. Building entrance door locks inadequate. Locks
defective and offer no security. Doors open to
public.
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On appeal, the petitioner-owner asserted, in pertinent part, that
the building's public areas are regularly maintained; that garbage
collection and building security are adequate and that despite the
building being subject to repeated acts of vandalism, all repairs
are promptly made. The owner further alleged that it was entitled
to a copy of the DHCR inspection report.
The petition was served on the tenants on October 20, 1988, and in
October and November 1988, various tenants filed answers to the
petition stating that contrary to the owner's assertions on appeal,
the owner failed to make repairs or to provide services.
After careful consideration of the entire evidence of record, the
Commissioner is of the opinion that the administrative appeal
should be denied.
Pursuant to Section 2523.4 (a), 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
repairs and maintenance.
For rent controlled tenants, Section 2202.16 of the Rent and
Eviction regulations provides that a finding that an owner failed
to maintain essential services may result in an order of decrease
in maximum rent, in an amount determined by the discretion of the
Rent Administrator, to reflect the decreased rental value because
of the decrease in services.
A review of the record discloses that the owner, through its
attorney, requested six separate extensions to answer the tenants'
complaint, ranging from December 21, 1987 to June 9, 1988, but that
he had failed to answer the complaint. Although the extension
requests stated that unless denied, it was assumed that the
requests were being granted, the Commissioner is of the opinion
that there was no basis for such an assumption and that the owner
had sufficient time to interpose an answer.
The Commissioner finds, therefore, that the petitioner having
failed to raise any issue whatsoever while the proceeding was
pending before the Rent Administrator, he may not now raise issues
for the first time on administrative appeal.
Moreover, administrative policy and precedent do not require that
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an owner be given notice of the inspection or the actual inspection
results and the courts have upheld this procedure (Empress Manor
Apartments v. NYS DHCR, 538 N.Y.S. 2d 49, 147 A.D. 2d 642, February
21, 1989).
The inspections conducted on February 11, 1988 and February 16,
1988, demonstrated that the owner failed to maintain services
throughout the public areas of the building.
The Commissioner finds that the Administrator properly based the
determination on the entire record, including the results of the
on-site physical inspections conducted on February 11, 1988 and
February 16, 1988 and that pursuant to Section 2523.4 (a) of the
Code and Section 2202.16 of the Rent and Eviction Regulations, a
rent reduction reflecting the reduced rental value of the
accommodations because of the decreased services was warranted.
Accordingly, the Commissioner further finds that the owner has
offered insufficient reason to disturb the Rent Administrator's
determination.
As regards the Rent Stabilized tenants, the automatic stay of the
retroactive rent abatement that resulted from the filing of this
petition is vacated upon issuance of this Order and Opinion.
The Commissioner notes that the owner's application for rent
restoration was granted on May 11, 1989, under Docket No.
CJ430083OR.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code and the Rent and Eviction Regulations
for New York, it is
ORDERED, that the owner's petition be, and the same hereby is,
denied, and the Rent Administrator's order be, and the same hereby
is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
DEPUTY COMMISSIONER
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