ADM. REVIEW DOCKET NO.DH130085RO et. al.
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL
JAMAICA, NY 11433
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.:
DH130085RO
DH110520RO
DH110521RO
Richard Albert DH110522RO
DH110523RO
RENT ADMINISTRATOR'S
DOCKET NO.:
BL130110B
PETITIONER
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
On August 10, 1989, the above-named petitioner-owner filed five
separate petitions for administrative review of an order issued on
July 6, 1989, by the Rent Administrator, concerning the housing
accommodations known as Apts. 1Y and 3T at 93-49 222nd Street, and
Apts. 1D, 1F and 2B at 93-41 222nd Street, Queens Village, New York
wherein the the Administrator determined that the owner had failed
to maintain required or essential services. The Administrator
ordered a rent reduction and directed the owner 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
issue raised by the administrative appeal.
This proceeding was commenced when twenty separate complaints of
decrease in building-wide services were filed by various tenants of
the subject multi-unit complex.
The complaints were signed on different dates in 1987 and 1988 and
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describe different conditions requiring repair. They were served
on the owner on May 27, 1988.
In an answer dated June 15, 1988, the owner alleged, in substance,
that all required services are being maintained and that this
proceeding is one of 28 dockets consolidating 306 complaints
received on the same day.
A physical inspection on April 21, 1989 revealed a hole in the
center of the northwest courtyard covered with a cement slab,
stones, and bricks; an accumulation of 18 tree trunks in the north
driveway; falling brick and mortar on the interior of the parapet
walls of the buildings at 93-41 and 93-49 222nd Street; and poor
janitorial services in all buildings.
Based on the inspection report, five separate rent reduction orders
were issued, each listing those conditions cited in the tenant's
complaint that were confirmed by inspection and ordering a rent
reduction consistent with the rent controlled or rent stabilized
status of the apartment.
The owner filed five separate petitions for administrative review
alleging that there was a dry well for rain water in the middle of
a clump of trees in a courtyard where tenants are not permitted
which, in response to the tenants' complaints, the owner covered
with the seat from a marble bench and sealed it with cement and
stones. This careful and proper repair, the owner argues, should
not warrant a rent reduction.
The accumulation of tree trunks is a decorative feature, according
to the owner, consisting of log sections from a cut tree placed
side by side along the fence next to a driveway for aesthetic
purposes and to provide additional protection against motor
vehicles damaging the fence.
As for the condition of the parapet walls, the owner asserts that
age and water conditions cause brick and mortar to flake which is
a normal consequence of weathering that is known as "spalling."
The owner states that there are no falling bricks and no rent
reduction is warranted for what is merely a cosmetic condition.
With regard to the finding of inadequate janitorial services, the
owner cites a prior proceeding before the Division wherein it was
determined after a hearing that the maintenance staff meets
regulatory requirements.
The petitions were served on the tenants on November 13, 1989.
Similar answers were filed by all tenants, urging that the
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petitions be denied because the rent reduction orders were based on
the inspector's findings which the owner does not dispute and the
owner has an ongoing responsibility to maintain the public parts of
the premises.
After careful consideration of the entire evidence of record, the
Commissioner is of the opinion that the petitions should be denied.
Section 2523.4 of the Rent Stabilization Code requires the Division
to order a rent reduction, upon application by a tenant based on a
finding that the owner has failed to maintain required services.
Required services are defined by Section 2520.6(r) to include
repairs, decorating and maintenance, janitorial services and
removal of refuse.
Section 2202.16 of the Rent and Eviction Regulations authorizes a
reduction in an amount reflecting the reduced rental value of the
housing accommodations based on a finding that the owner is not
maintaining essential services. Essential services are defined in
Section 2200.3 to include repairs, decorating and maintenance,
janitorial services and removal of refuse.
In the instant case, the physical inspection by DHCR confirmed the
existence of defective conditions for which the rent reductions
ordered by the Administrator are warranted. The owner's petitions
do not establish any basis for modifying or revoking the orders.
The complaint regarding the hole in the courtyard was that the
owner had made a cosmetic and ineffective attempt to hide a hole
that the Office of Code Enforcement (OCE) had described as an
immediately hazardous condition and had placed a violation for it
in 1985. The owner's certification that this condition had been
corrected was determined to be false upon reinspection by OCE. The
tenants had submitted with the complaints a copy of the violation
report. The owner was, therefore, on notice that it was the repair
to the hole that the tenants considered inadequate and this was
confirmed by the Division's inspector.
The accumulation of tree trunks was also the subject of a violation
issued to the owner by the Department of Health because it created
a "potential rat harborage." While matters of decorative features
or aesthetics are generally within an owner's discretion, an item
that constitutes a health hazard is rubbish which must be removed.
The owner's failure to take away the tree trunks after the
violation and the tenants' complaints with the Division warrants a
rent reduction.
Similarly the spalling condition of the brickwork on the parapet
walls was the subject of a violation by the Office of Code
Enforcement which directed the owner on March 31, 1987 to repair
the cement stucco with similar material. If this is an item of
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normal repair and maintenance caused by weather conditions as the
owner alleges, the owner had adequate opportunity from the time the
complaints were sent to the owner in May 1988 until the inspection
in April 1989 to repair this purportedly minor condition. The
failure to address the problem constitutes a failure to maintain
services.
Finally, the finding of inadequate janitorial services is not
barred by the determination in another earlier proceeding that the
premises have adequate maintenance staff. Proper maintenance of
the public areas of a building or complex is an ongoing obligation
which may deteriorate any time and, if confirmed by inspection,
warrants a rent reduction despite any determination in prior
proceeding that such services were adequate.
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 the Rent Administrator's orders be, and the same hereby are,
affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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