CK410031RO
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
APPEALS OF DOCKET NO.: CK410031RO
CHARLOTTE DEUTSCH RENT
ADMINISTRATOR'S DOCKET
NO.: BJ411068S
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On November 14, 1988 and on November 16, 1988 the above named
petitioner-owner timely filed Petitions for Administrative Review
against an order of the Rent Administrator issued on October 7,
1988 and an amended order issued on October 12, 1988, respectively.
The orders concerned the housing accommodations known as Apt. B
located at 138 W. 73rd Street, New York, N.Y. The Administrator
directed restoration of services and ordered a rent reduction for
failure to maintain required services. The amended order revised
the rent regulated status of the subject apartment, the amount and
effective date of the rent reduction, and otherwise affirmed the
initial order. Both administrative appeal filings by the owner
were assigned Docket No. CK410031RO.
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 October 23, 1987 by
filing a Statement of Complaint of Decrease in Services wherein he
alleged, in substance, that the owner was not maintaining certain
required apartment services.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on August 29,
1988 and stated that this complaint was a duplicate of a complaint
filed by the tenant and assigned Docket No. BJ410695S; that the
tenant was not in occupancy of the apartment and had no right to
file this complaint; and that the owner had made the required
repairs to the subject apartment.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on September 28, 1988 and
CK410031RO
revealed the following:
1. Plastered areas in need of painting,
2. Bathroom sink is cracked,
3. Storm and screen door to the rear garden do not
close properly,
4. Sliding door frame to the master bedroom is
defective,
5. Hot and cold water shut off valves are without
collars in the kitchen and bathroom where the pipes
enter the walls,
6. Evidence of vermin infestation,
7. Holes in exterior brick walls and at one window,
8. Four closets in need of painting, and
9. New sheet rock installed at second bedroom wall in
need of painting.
All other services complained of were found to have been
maintained.
The Administrator issued a rent reduction order on October 7,
1988 and ordered a rent reduction in an amount equal to the
percentage of the most recent guidelines adjustment for the
tenant's lease commencing before June 1, 1988 based on the report
of the inspector. The tenant then notified the Administrator that
the subject apartment is subject to rent control. On October 12,
1988 the Administrator issued an amended order wherein a rent
reduction of $27.00 plus 10% of the maximum legal rent was ordered
effective November 1, 1988.
The owner filed administrative appeals against both of the
above-described orders. The owner states that the complaining
tenant does not reside in the subject apartment and has not done so
since January, 1986; that a copy of the inspection report described
above should have been provided to the owner; that inspections
conducted with regard to proceedings in New York City Housing Court
found that the tenant's complaints were without merit; and, with
regard to the order establishing that the tenant is rent-
controlled, that the Administrator erred in so finding. The
petitions were served on the tenant.
The tenant filed a response on February 7, 1989 and stated, in
sum, that the subject apartment was indeed rent-controlled; that
the DHCR did not have jurisdiction to adjudicate claims of whether
CK410031RO
or not a tenant resides in the apartment; and that the order issued
on October 12, 1988 was correct and should be affirmed.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition filed on November
14, 1988 should be denied; that the petition filed on November 16,
1988 should be granted in part; that the amended order, issued on
October 12, 1988 order, should be revoked. The tenant is granted
a rent reduction of an amount equal to the percentage of the most
recent guidelines adjustment for the tenant's lease which commenced
before the effective date of the rent reduction. Furthermore, no
rent increase may be collected after the effective date of the rent
reduction, until a rent restoration order has been issued. The
owner is directed to refund to the tenant all amounts collected in
excess of the reduced rent since June 1, 1988, the effective date
of the rent reduction.
With regard to the owner's appeal of the amended order, the
Commissioner notes that the issue of whether the subject apartment
is subject to rent control has been independently adjudicated
before the DHCR. In Docket No. CJ420011RO the Commissioner ruled
that the subject apartment was subject to the Rent Stabilization
Law and Code. The tenant filed a proceeding in Supreme Court
pursuant to Article 78 of the CPLR and sought judicial review of
the order. The agency then agreed to remit this matter for further
fact finding. In Docket No. IC410011RP the Commissioner made a
further finding of fact and affirmed the prior determination that
the subject apartment is subject to the Rent Stabilization Law and
Code. The owner is, therefore, correct, in arguing that the
Administrator erred in issuing the amended order on October 12,
1988. That order is, therefore, revoked.
With regard to the owner's challenge to the inspection,
the Commissioner notes that numerous prior decisions have held that
the filing of the complaint puts the owner on notice of the
existence of defects in the apartment and the need to investigate
and make necessary repairs. The owner is not entitled to any
notice of inspections, the right to be present at such inspections
or a copy of the inspection report. The courts have upheld this
policy (see Empress Garden Apts. v. DHCR, 538 N.Y.S.2d 49 [2nd
Dept., 1989]).
The Commissioner finds that the Administrator based this
determination on the entire record including the above described
inspection. The owner has not rebutted the inspector's report. The
Commissioner therefore orders a rent reduction as set forth above
to be effective June 1, 1988.
With regard to the owner's argument regarding the alleged
nonresidence of the tenants, the Commissioner is of the opinion
that such matter is not the proper subject for determination in a
services reduction proceeding. This order and opinion is issued
CK410031RO
without prejudice to the right of the owner to raise such issue in
a separate proceeding in the proper forum.
The automatic stay of the retroactive rent abatement which
resulted from the filing of this petition for administrative review
is vacated upon issuance of this order and opinion. The owner may
file for rent restoration when services have been fully restored.
THEREFORE, pursuant to the Rent Stabilization Law and Code, it
is
ORDERED, that the petition for administrative review filed
against the order issued on October 7, 1988 be, and the same hereby
is, denied and it is further,
ORDERED, that the petition for administrative review filed
against the amended order issued on October 12, 1988 be, and the
same hereby is, granted, in part, and that the amended order be,
and the same hereby is, revoked and it is further
ORDERED, that the tenant is granted a rent reduction of an
amount equal to the percentage of the most recent guidelines
adjustment for the tenant's lease commencing prior to June 1, 1988.
ISSUED:
LULA M. ANDERSON
Deputy Commissioner
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