DC 230214 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.: DC 230214 RO
JOHN H. WINFREY, RENT ADMINISTRATOR'S
DOCKET NO.: CE 220085 B
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND MODIFYING RENT ADMINISTRATOR'S ORDER
On March 20, 1989 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued February 21, 1989. The order concerned housing
accommodations located at 385 East 18th Street, Brooklyn, N.Y. The
Administrator ordered a building-wide rent reduction for failure to
maintain required services.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
This proceeding was commenced on May 26, 1988 when 18 of the
71 tenants of the building filed a Statement of Complaint of
Decrease in Building-Wide Services wherein they alleged the
following services deficiencies:
1. Public hallways not maintained,
2. Dirty incinerator rooms; sinks removed; walls dirty
and in need of painting,
3. Loud noises emanating from heating or plumbing
system,
4. Lobby carpeting damaged from fire,
5. Superintendent unavailable during day,
6. Sidewalks uneven, cracking and retaining water,
7. Bricks and cement deposited in grass and bushes and
not removed,
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8. Exterior house wood trims peeling or completely
without paint,
9. Problems with building security especially around
laundry room,
10. Backyard lighting burned out and not replaced,
11. Unauthorized person living in porter's room,
12. Roof door not properly secured allowing
unauthorized persons access to roof.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on July 1,
1988 and stated the following:
1. The public hallways are maintained but are in need
of stripping which, the owner indicated, would be
done,
2. The incinerator rooms are not dirty but the walls
do need painting and the sinks have been removed,
3. There is no evidence of loud noises emanating from
either the plumbing or heating system,
4. The lobby carpeting is water damaged and will be
replaced,
5. The owner investigated the absences of the
superintendent,
6. The sidewalks are uneven, cracking and water
damaged in some areas,
7. The cement and brick debris would be removed,
8. Exterior house trim is peeling and in need of
paint,
9. The entrance door has been locked and the basement
is well lighted and secure,
10. The backyard lighting is functioning,
11. There are no unauthorized persons living in the
basement,
12. The roof area is secure.
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The owner stated that, since he was attending to the items
that required repair and since the items in question were so minor,
the complaint should be dismissed.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on December 8, 1988 and
revealed the following:
1. The roof door on the right side of the building is
not secure,
2. Five or six backyard bulbs were not functioning at
the time of the inspection,
3. The sinks in the incinerator rooms have all been
removed from the incinerator rooms on the right
side of the building (except for the first floor),
4. The front sidewalk has cracks.
The following services were found to have been maintained:
1. Public area are clean,
2. Incinerator rooms do not have peeling paint and
plaster,
3. New lobby carpeting installed,
4. No debris in surrounding bushes or grass,
5. Building entrance and vestibule doors secure,
6. No evidence of loud noises emanating from plumbing
or heating,
7. Exterior trimming not peeling paint and plaster.
The Administrator issued the order here under review on
February 21, 1989 and ordered a rent reduction of $17.00 per month
for rent controlled tenants and an amount equal to the most recent
guideline adjustment for rent stabilized tenants
On appeal, the owner states that the rent reductions ordered
for the roof door lock, backyard light bulbs and sidewalk were not
warranted because these items were de minimis in nature. The owner
argues that such services reductions are not so substantial as to
warrant a reduction in rent. With regard to the sinks, the owner
states that they are irrelevant as a service provided to the
tenants and were installed for the benefit of the superintendent.
They were removed when the tenants began using them to dispose of
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refuse. The owner stated that he feared the development of vermin
infestation. Finally, the owner stated that it was denied due
process when it was denied notice of the inspection and a copy of
the report of the inspector. The owner also alleged that the
single inspection provided insufficient evidence that there was a
pattern of decreased services. The tenants did not file responses.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be granted
in part and the order should be modified.
With regard to the issue of the due process denial alleged by
the owner, the Commissioner notes that numerous prior orders have
held that the owner is put on adequate notice of the existence of
alleged service reductions by the serving of the complaint. There
is no further notice required to be afforded nor is the owner
entitled to a copy of the inspection report. The courts have
affirmed this policy (see Empress Manor Apartments v. DHCR 538
N.Y.S.2d 49 [2nd. Dept., 1989]). The owner's claim that the report
of the inspector provides insufficient evidence to warrant the rent
reduction is also without merit. The report of a DHCR inspector is
entitled to greater probative weight than the unsupported
allegations of a party to the proceeding.
The Commissioner finds that the Administrator properly based
the determination on the entire record including the results of the
on-site physical inspection conducted on December 8, 1988 and that,
pursuant to 9 NYCRR 2523.4, the Administrator was mandated to
reduce the rent upon determining that the owner had failed to
maintain services. Furthermore, pursuant to 9 NYCRR 2202.16 the
Administrator was empowered to order a decrease in the maximum rent
in an amount determined by the reasonable exercise of discretion.
The Commissioner finds that there is no basis for disturbing
the findings regarding the roof door, and backyard light bulbs.
Neither of these conditions is so de minimis as to not warrant a
rent reduction. An unlocked roof door and defective exterior
lights pose a potential security risk which is clearly not
insignificant in nature. They are also conditions that could
easily have been remedied during the time between service of the
complaint on the owner in June 1988 and the physical inspection six
months later. The failure to make the necessary repairs warrants
a rent reduction.
As for the sidewalks, however, the tenants complained that the
sidewalks are uneven, cracking and retaining water in some areas.
The physical inspection, however, merely revealed that the sidewalk
is cracked in four spots but is not uneven. A cracked sidewalk
does not indicate a failure to make necessary repairs without some
evidence that the sidewalk poses a tripping hazard or there is
significant deterioration of the cement or the sidewalk was
installed in an unworkmanlike manner. Since the complaint of an
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uneven sidewalk was not confirmed by the inspection, the cracks in
what is concededly a new sidewalk does not warrant a rent reduction
and the Administrator's order is modified to delete this item. The
$2.00 per month rent reduction for this item is deleted.
With regard to the issue of the incinerator sinks, the owner
stated before the Administrator that the sinks had been removed and
now states that the reason for this removal was that the sinks were
never intended for use by the tenants and that they were being
used as repositories for refuse. The Commissioner notes that the
tenants have not disputed the owner's contention in the petition
that the sinks were never available for use by the tenants. The
Commissioner has ruled that, in circumstances such as this, an
incinerator sink is not a required or essential service within the
meaning of the rent regulation statutes. (Accord: CH 630118 RO)
Accordingly, a rent reduction is not warranted for the removal of
these sinks. The order here under review is modified to delete the
finding regarding the incinerator sinks as well as the $5.00 per
month rent reduction ordered by the Administrator based on said
finding.
With regard to rent controlled tenants, if the current owner
has complied with the order here under review and arrears are due
and owing based on the Commissioner's modification of the order,
the tenants may pay off said arrears in twelve (12) equal monthly
installments. If any tenant has vacated their apartment, said
arrears are due and payable immediately.
The Commissioner notes that the owner has filed for rent
restoration and that application was granted on October 2, 1989 in
an order bearing Docket No. DC 220119 OR.
THEREFORE, pursuant to the Rent Stabilization Law and Code and
Rent and Eviction Regulations it is
ORDERED, that this petition be, and the same hereby is,
granted in part, and that the Rent Administrator's order be, and
the same hereby is, affirmed as modified herein.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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