Docket Number: DB 430109-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.: DB 430109-RO
PERRY MANSIONS, DISTRICT RENT ADMINISTRATOR'S
DOCKET NO.: CF 430100-B
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 6, 1989, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
January 6, 1989, by the Rent Administrator at Gertz Plaza,
Jamaica, New York, concerning the housing accommodations known as
220 Waverly Place, New York, New York, wherein the Administrator
reduced the tenants' rents based on a finding of a reduction of
building-wide service.
The issue in these proceedings is whether the Administrator's
orders' were proper.
The applicable law is Section 2202.16 of the Rent & Eviction
Regulations and Section 2520.6(r) and 2523.4 of the Rent Stabil
ization Code.
The tenants commenced this proceeding on August 1, 1988 by filing
a joint complaint alleging various service decreases. Specifi
cally, the tenants complained that there was no janitor/superin
tendent either living on the premises or within one block or 200
ft. of the subject premises. The tenant asserted that, as a
result, the public hallways, stairs and foyer are dirty and
cleaned infrequently; that the owner failed to repair a front
entrance door lock broken since August 1987; and that the garbage
cans overflowed with refuse before a garbage pickup is made. The
tenants also complained that problems arising with individual
apartments were not addressed promptly.
On August 9, 1988, the individual identified as the owner by the
tenants in the complaint responded requesting that the complaint
be dismissed. The owner argued that the tenants had failed to
properly identify the owner in the complaint, but did not indicate
his relationship to the owner; that the issue of a resident super
was not within the jurisdiction of the Division, asserting,
however, that regular janitorial services were indeed provided;
that the front door lock was operating properly; and than any dust
in the halls was a temporary condition due to renovation being
made in one of the apartments.
An inspection was conducted on December 9, 1988, by a member of
Division's inspection staff. The rents for the controlled tenants
were reduced by $10.00 based on finding that janitorial service
Docket Number: DB 430109-RO
throughout the public areas were inadequate ($5.00), in that
carpeting and hallway floors were dirty, and that the entrance
door lock was defective ($5.00), in that it was battered and
damaged.
On appeal the owner named by the tenants below, identifying
himself as a general partner, reiterates the arguments below that
the complaint should have been dismissed for failure to name the
owner properly and claims that janitorial services are adequate.
The petitioner also contends that a damaged and battered front
door lock, due to vandalism and beyond the owner's control, as
well as stained carpets, were routine maintenance conditions not
constituting reduced services warranting a rent reduction. It
also argues that it was denied due process in that the owner was
not given notice of the inspection or provided the opportunity to
be present evidence at the inspection, nor provided a copy of the
inspection report or the opportunity to cross-examine the inspec
tor.
After careful consideration the Commissioner is of the opinion
that the petition should be denied.
Despite statements below and at PAR that janitorial services were
adequate the inspector reported that public areas were dirty and
the carpets stained. The Commissioner rejects the petitioner
characterization of dirt and stains in public areas as routine
maintenance conditions that do not constitute reduced services.
The owner remains responsible for maintaining premises safe and
clean, including during periods of maintenance and repair or
renovations, and failure to do so constitutes a reduction of
services. Moreover the Courts have held that once the Division
determines that there exist conditions constituting a diminution
of services, the Division must order rent reductions. Hyde Park
Gardens v. DHCR, 140 AD2d 351, 527 NYS2d 841 (AD2d Dept.) affd.,
73 NY2d 998, 541 NYS2d 345 (Ct. App. 1989).
For similar reasons, the Commissioner rejects the owner's charac
terization of a battered and damaged entrance door lock as a
routine maintenance condition. On the contrary, the condition
constituted a serious safety and security hazard that required
immediate corrective action. The fact that the damage may have
arisen as a result of vandalism did not mitigate the owner's
responsibility to maintain the equipment and to make repairs
promptly. The Commissioner is of the further opinion that the
tenant's complaint that the front door and lock required repairs
clearly gave the owner notice of defective conditions, confirmed
by inspection, which found the lock battered and damaged.
The Commissioner also rejects the petitioner's argument of a
denial of due process for failure to serve notice of the
inspection, to have the owner present, to provide copies of the
inspection report or to provide the owner the opportunity to cross
examine the inspector.
The Division's procedure do not require the Division to give
parties notice of the inspection, unless, in the Division's
discretion, their presence is required, nor to apprise the parties
of the results. With regard to the request for a hearing to cross
Docket Number: DB 430109-RO
examine the inspector, the Commissioner notes that the Rent
Administrator does not require the Administrator to hold a
hearing. In the absence of such a mandate all that due process
requires is that reasonable opportunity be afforded the parties
and that they have opportunity to present their objections. The
owner's vigorous arguments below establish that the owner was
afforded such an opportunity. The Commissioner further notes that
the inspection report, prepared by a rent agency employee not a
party to the proceeding and not an adversary to the owner, was
properly placed in the record for consideration by the
Administrator. In this regard, the Commissioner notes that the
record has always been available to the parties by a proper
written request pursuant to the Freedom of Information Law (FOIL).
As to the petitioner's argument that the complaint should be
dismissed because the tenant named the wrong party as the owner,
the Commissioner notes that Section 2520.6(i) of the Rent
Stabilization Code defines an owner, as follows:
(i) Owner. A fee owner, lessor, sublessor, assignee,
net lessee, or a proprietary lessee of a housing
accommodation in a structure or premises owned by a
cooperative corporation or association, or an owner of a
condominium unit or the sponsor of such cooperative
corporation or association or condominium development, or
any other person or entity receiving or entitled to receive
rent for the use of occupation of any housing
accommodation, or an agent of any of the foregoing, but
such agent shall only commence a proceeding pursuant to
Section 2524.5 of this Title (Evictions Requiring DHCR
Approval), in the name of such foregoing principals.
A general partner, whether of the owner or of the owner's managing
agent, was therefore, properly deemed an owner for the purposes of
these proceeding.
THEREFORE, in accordance with the provisions of the Rent &
Eviction Regulations, the Rent Stabilization Law and Code, Chapter
403 of the Laws of 1984, and Chapter 102 of the Laws of 1984, it
is
Docket Number: DB 430109-RO
ORDERED, that the owner's petition be and the same hereby is,
denied, and the Administrator's order be, and the same hereby is
affirmed, as provided above.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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