DE 130119 RO; DH 110469 RT; DE 110191 RT
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 NOS.:
DE 130119 RO
DH 110469 RT
DE 110191 RT
MORRIS SCHARF
DORIS KAPLAN RENT
DON FILIMON ADMINISTRATOR'S DOCKET
NO.: CH 130081 B
PETITIONERS
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ORDER AND OPINION GRANTING TENANTS' PETITIONS FOR ADMINISTRATIVE
REVIEW AND DENYING OWNER'S PETITION FOR ADMINISTRATIVE REVIEW
The above referenced administrative appeals have been
consolidated as all contain common issues of law and fact.
The above named petitioner-owner and petitioner-tenants filed
and timely refiled Petitions for Administrative Review against an
order of the Rent Administrator issued April 27, 1989. The order
concerned various housing accommodations located at 111-35 75th
Avenue, Forest Hills, N.Y. The Administrator ordered a rent
reduction of $3.00 per month for rent controlled tenants only for
failure to maintain required services, declined to order a rent
reduction for rent stabilized tenants and directed the owner to
restore services.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by these
appeals.
This proceeding was commenced on August 15, 1988 when 10 of
the 35 building tenants filed a Statement of Complaint of Decrease
in Building-Wide Services wherein they alleged the following
services deficiencies:
1. Inadequate janitorial service,
2. Refuse accumulation in backyard,
3. Lobby windows not properly secured,
DE 130119 RO; DH 110469 RT; DE 110191 RT
4. Possible asbestos contamination,
5. Front of building not waterproofed; water leaks;
cracks in apartment walls and peeling windows,
6. Elevator stops in between floors and not on each
floor.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on February
14, 1989 and stated that the building has been and is serviced by
a superintendent who keeps the premises clean, that the back yard
was temporarily dirty but the condition has been rectified, that
the lobby window is functioning normally, that an engineer
inspected the building for asbestos contamination and that the
tenants have not complained about water seepage from the bricks or
about elevator maintenance problems. The owner attached a
statement by the prior owner that the building had a resident
superintendent and an engineer's report describing the asbestos in
the building.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on March 15, 1989 and
revealed the following:
1. Building vestibule ceiling shows signs of water
stains.
The following services were found to have been maintained:
1. Adequate janitorial services,
2. No refuse in backyard,
3. Lobby windows open and close properly,
4. Elevator does not stop between floors and levels
within regulations.
The Administrator issued the order here under review on April
27, 1989. A rent reduction of $3.00 per month was ordered for rent
controlled tenants. The Administrator did not order a rent
reduction for rent stabilized tenants but, instead, issued an order
directing the owner to restore services. The Commissioner notes
that, on July 25, 1990, the Rent Administrator ordered full rent
restoration effective August 1, 1990 (see Docket No. DF 130042 OR).
Two rent stabilized tenants have filed appeals from the
Administrator's order which declined to order a rent reduction for
rent stabilized tenants and, instead, ordered the owner to restore
services. Both petitioners state that, upon a finding that the
owner was failing to maintain required services, the Administrator
DE 130119 RO; DH 110469 RT; DE 110191 RT
should have ordered an appropriate rent reduction for them as well.
The owner filed responses on July 8, 1991 and August 12, 1992
but did not address the issue raised by the tenants in their
petitions.
The owner filed a Petition for Administrative Review on May
11, 1989 and stated that "The water stain on the vestibule ceiling
was removed on April 17, 1989." One tenant filed a response to the
petition but did not address the issue of the water stains.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the tenants' petitions should
be granted but that the owner's petition should be denied.
With regard to the owner's petition the Commissioner notes
that the petition was filed without any supporting documentation or
evidence to substantiate the owner's claim. It is settled that the
bare assertion of a party to the proceeding is insufficient to
overturn the findings of the Administrator, especially when there
has been a report of an inspector to the effect that services are
not being maintained.
The Commissioner notes that both petitioner-tenants herein
joined in the filing of the original complaint seeking rent
reduction. Pursuant to 9 NYCRR 2523.4 a tenant may apply to the
DHCR for a rent reduction and the Administrator shall reduce the
rent based on a finding of failure to maintain services. The
Commissioner finds that, since the Administrator made the requisite
finding, a rent reduction should have been ordered for rent
stabilized tenants as well as rent controlled ones. Therefore, the
Commissioner orders that the legal regulated rent for Apt. 24 and
Apt. 51 be reduced by the percentage of the most recent guideline
adjustment for the tenant's lease which commenced before the
effective date of this order. The rent reduction is ordered
effective March 1, 1989, the first rent payment date following
service of the complaint on the owner. Pursuant to the order of
the Administrator in Docket No. DF 130042 OR the rent is ordered
restored effective August 1, 1990. The owner is directed to refund
excess rents collected as a result of this rent reduction within 30
days of the issuance of this order and if the owner fails to refund
within 30 days, the tenants are authorized to deduct the amount
from future rents until the total amount has been refunded.
THEREFORE, pursuant to the Rent Stabilization Law and Code and
Rent and Eviction Regulations for New York City it is
ORDERED, that the owner's petition for administrative review
be, and the same hereby is, denied and it is further,
ORDERED, that the tenants' petitions be, and the same hereby
are, granted, and that the petitioner-tenants herein are granted a
DE 130119 RO; DH 110469 RT; DE 110191 RT
rent reduction effective from March 1, 1989 to August 1, 1990.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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