Docket No.: DA 110062-RO
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.: DA 110062-RO
KINGSWOOD MANAGEMENT, INC., DISTRICT RENT ADMINISTRATOR'S
DOCKET NO.: CF 130095-B
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 9, 1989, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
December 13, 1988, by the Rent Administrator at Gertz Plaza,
Jamaica, New York, concerning the housing accommodation known as
147-11 79th Avenue, Apartment 3-O, Flushing, New York, wherein the
Administrator provided the tenant a rent reduction based on a
finding of a facilities-wide and building-wide reduction of
services.
The issue in these proceedings is whether the Administrator's
order was proper.
The applicable law is Section 2520.6(r) and 2523.4 of the Rent
Stabilization Code.
The tenant commenced these proceedings on June 20, 1988 by filing
a complaint alleging that the driveway was in disrepair, that the
playground water fountain cement casing required repairs, that new
single hung windows installed by the owner to replace casement
windows constituted a reduction of services, and that water leaks
through the roof parapet walls were causing damage to the
interior.
The owner responded on August 17, 1988 to the effect that roof
repairs were completed and that the owner was in the process of
repairing the driveway potholes. The owner asserted that the new
windows were operative and that the water fountains were not a
required service.
An inspection conducted on November 28, 1988 by a member of the
Division's inspection staff confirmed that the driveway and cement
walls were uneven and the existence of potholes, that the cement
casing of the water fountain required repairs and replacement, and
that the stairwells and areas leading to roof stairs had peeling
paint and plaster due to water seepage.
Docket No.: DA 110062-RO
Based on the inspector's findings, on December 13, 1988, the
Administrator issued an order reducing the tenant's rent by the
percentage of the most recent guidelines adjustment for the
tenant's lease which commenced before the effective date of the
rent reduction, August 1, 1988.
The petitioner challenges the Administrator's order arguing that
there were no grounds for a rent reduction.
The petitioner argues that the uneven driveway and potholes were
not rent impairing violations, but merely matters involving
routine maintenance; that the findings of uneven cement sidewalks
was beyond the scope of the tenant's complaint; that the finding
of peeling paint and plaster in the stairwell due to water seepage
was also not included in the complaint, that the tenant's
complaint of peeling paint and plaster about the area above the
area above the stairs leading to the roof doors did not provide a
basis for a rent reduction, as it was not in a public area; and
that the water fountain is not a service and, therefore, not a
basis for a rent reduction.
The petitioner also argues that the owner was denied due process
in that the owner was not afforded notice of the inspection, nor
an opportunity to make the required repairs, nor to comment on the
inspection report.
After careful consideration the Commissioner is of the opinion
that the petition should be denied.
The Commissioner rejects the petitioner's characterization of
uneven driveways and potholes as conditions involving routine
repair and maintenance. On the contrary, potholes constituted a
serious hazards to the tenant's safety, requiring prompt
corrective action. The Commissioner further notes that potholes
are not a normal condition in driveways. Moreover, while the
owner stated below that the potholes would be fixed, they remained
or had reoccurred at the time of inspection. The Commissioner
further finds that the tenant's claim of uneven driveway
sufficiently alerted the owner to similar conditions in the
adjacent cement walks.
The tenant's complained below of damage due to water seepage from
a leaking roof parapet into inside walls and to the area above the
stairs leading to the roof door. Peeling paint and plaster is a
foreseeable consequence of water seepage. The tenant's complaint
gave adequate notice that a problem existed. The petitioner's
questionable assertion that the stairs leading to the roof are not
in a public area, did not excuse the owner from addressing the
problem of water leaks in the building.
Docket No.: DA 110062-RO
The Commissioner also rejects the petitioner's assertion that a
water fountain was not a base date service. The mere presence of
the functioning equipment confirms the water fountain is a
required service. The statement at PAR that "the fountain was
abandoned prior to the imposition of the Rent Stabilization
Law..." constitutes an admission that the owner has failed to
maintain and repair the equipment. The owner is urged to
ascertain if the cement casing requires repair or replacement, if
not already done so.
The petitioner's argument of a denial of due process for failure
to serve notice of the inspection or to afford an opportunity to
comment on the inspection report prior to the determination and
rejected. The Division's procedures do not require the Division
to give the parties notice of the inspection unless, in the
Division's discretion, their presence is required, nor to apprise
the owner of the results. Moreover, the report, prepared by a
rent agency employee, not a party to the proceedings, and not an
adversary to either party, was properly placed in the record for
the Administrator's consideration, and was entitled to substantial
weight.
THEREFORE, in accordance with the Rent Stabilization Code and the
Rent and Eviction Regulations, Chapter 403 of the Laws of 1983,
and Chapter 102 of the Laws of 1984, it is
ORDERED, that the owner's petition be, and the same hereby is
denied and that the Administrator's order be and the same hereby
is affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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