ADM. REVIEW DOCKET NO.: DH 110548 RO ETC.
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 NOS.:
DH 110548 RO DH 110158 RO
: DH 110151 RO DH 110160 RO
DH 130154 RO
RENT ADMINISTRATOR'S
DOCKET NO.: BL 130116 B
RICHARD ALBERT,
PETITIONER :
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The Commissioner has consolidated these petitions as they
involve common questions of law and fact.
The above-named owner filed timely petitions for
administrative review against an order issued on July 6, 1989, by
a Rent Administrator concerning various housing accommodations in
the buildings known as 94-03, 94-05, 93-41, 93-43, and 93-49
222nd Street, Queens Village, New York, wherein rents were
reduced due to a diminution of service and the owner directed to
restore services.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issues raised by the petition for review.
Various tenants, filed applications for rent reductions
based on the owner's alleged failure to maintain services
alleging, inter alia, cracked sidewalks in various areas of the
courtyard, various chain stanchions in the center courtyard were
bent and loose, a large tree in the center courtyard was rotted
and in danger of falling, and there were two broken basement
windows.
The owner interposed an answer to the tenants' complaints
wherein he alleged, inter alia, that the DHCR Compliance Bureau
had confirmed repair of the sidewalks on April 9, 1987 and
further alleged that all required services were being maintained.
On April 20, 1989 a physical inspection of the subject
premises was carried out by the Division of Housing and Community
Renewal (DHCR). The inspector, in his report, noted that the
complained of conditions were as alleged by the tenants.
On July 6, 1989 the Rent Administrator issued the order here
under review finding that a diminution of services had occurred
and reducing some of the tenants' rents to the levels in effect
ADM. REVIEW DOCKET NO.: DH 110548 RO ETC.
prior to the last rent guidelines increase which commenced before
the effective date of the rent reductions and reducing the
rentals of the rent controlled tenants by four dollars monthly.
The owner was directed to repair the two broken basement windows.
In his petitions for administrative review the owner
requests reversal of the Rent Administrator's order alleging that
the Compliance Bureau of this Division confirmed repair of the
courtyard sidewalks on April 9, 1987, that prior to the date of
issuance of the order repairs had again been effectuated to the
sidewalks and the chain stanchions, that the original complaint
made no mention of a rotted tree and that the inspector's finding
was based upon a lack of knowledge.
Several tenants interposed answers requesting the denial of
the owner's petitions.
After careful consideration the Commissioner is of the
opinion that these petitions should be denied.
The Commissioner notes that although the owner alleges that
the complained of conditions had been corrected prior to the
issuance of the order under review, he had offered no evidence to
substantiate this allegation before the Rent Administrator.
Accordingly, the owner has offered insufficient reason to
disturb the Rent Administrator's order.
While the owner alleges that the original complaint made no
mention of a rotted tree the Commissioner notes that this item
was alleged in the original complaint of the tenants of apartment
23 at 93-41 222nd Street (item 3 of complaint) and, therefore,
the Commissioner finds that this item was properly a subject of
the Rent Administrator's order. The owner had to address this
item before the Rent Administrator.
The Commissioner notes that while the owner questions the
findings of fact the record clearly reflects those findings by
virtue of DHCR inspection which occurred on April 20, 1989. The
owner's allegation of "extreme bias and lack of knowledge" on the
part of the DHCR inspector is unsupported by any evidentiary
showing on the part of the petitioner.
The Commissioner notes that the very nature of sidewalks,
cement, and concrete requires that regular maintenance be carried
out. Climate and conditions, such as temperature, rain, ice,
etc. cause expansion and contraction of surfaces leading to
breakage. Conditions monitored at one point in time are not
necessarily probative of later or earlier conditions.
Accordingly, prior administrative determinations have relied upon
the greater weight of later inspections occurring prior to the
issuance of Administrator's order (whether they evince repair or
recurrence of breakage). The Commissioner notes that the owner
has urged that the Commissioner rely upon the March 26, 1987
inspection of the sidewalks (mentioned in the April 9, 1987
compliance letter attached to the petition) and, indeed, the
ADM. REVIEW DOCKET NO.: DH 110548 RO ETC.
Commissioner has relied on this inspection in prior cases as
evidence of repair on the date indicated. However, in the
instant case the inspection relied on by the Administrator was
carried out on April 20, 1989 - subsequent to the inspection
cited by the owner - and is entitled to more weight since it is
more probative of the conditions existing on July 6, 1989 - the
date of issuance of the Administrator's order.
Section 2202.16 of the Rent and Eviction Regulations
provides that if the owner fails to maintain services, the
administrator may order a decrease in the maximum rent in an
amount which the administrator in his discretion may determine.
The record in the instant case reveals that the tenants
complained about problems on the premises and a physical
inspection of the premises confirmed that these problems indeed
existed.
Accordingly, the Commissioner finds that the administrator
properly determined that the owner had not made needed repairs
and for this reason rent reductions are warranted.
Pursuant to Section 2523.4(a) of the Rent Stabilization
Code,
A tenant may apply to the DHCR for a reduction of
the legal regulated rent to the level in effect
prior to the most recent guidelines adjustment,
and the DHCR shall so reduce the rent for the period
for which it is found that the owner has failed
to maintain required services.
Required services are defined in section 2520.6(r) to include
repairs and maintenance.
The Commissioner finds that the administrator properly based
his determination on the entire record, including the results of
the on-site physical inspection conducted on April 20, 1989 and
that pursuant to Section 2523.4(a) of the Code, the administrator
was mandated to reduce the rent upon determining that the owner
had failed to maintain services.
This Order and Opinion is issued without prejudice to the
owner's rights as they may pertain to an application to the
Division for a restoration of rent based upon the restoration of
services.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, and the Rent and Eviction Regulations for New York City, it
is
ORDERED, that these petitions be, and the same hereby are,
denied, and that the Rent Administrator's order be, and the same
hereby is, affirmed.
ADM. REVIEW DOCKET NO.: DH 110548 RO ETC.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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