Adm. Rev. Docket No: DH 230390-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.: DH 230390 RO
:
MARTIN GELFAND, : DISTRICT RENT ADMINISTRATOR'S
: DOCKET NO.: DJ 230032-B
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND REMANDING PROCEEDINGS TO THE ADMINISTRATOR
FOR FURTHER CONSIDERATION
On August 1, 1989, the above-named petitioner-owner filed a Petition
for Administrative Review against an order issued on July 6, 1989,
by the Rent Administrator at Gertz Plaza, Jamaica, New York,
concerning the housing accommodation known as 3096 Brighton 6th
Street, Brooklyn, New York wherein the Administrator granted the
tenants' request for rent reduction based on a finding of a
reduction of building-wide services.
The issue in these proceedings is whether the Administrator's
determination was proper.
The applicable law Section 2520.6(r) and 2523.4 of the Rent
Stabilization Code and Section 2202.16 of the Rent & Eviction
Regulations.
The tenants initiated the proceedings on October 14, 1988 by filing
a joint complaint of a reduction of building-wide services. The
tenants alleged that the elevator worked only sporadically and that
it was out of operation several weeks at a time.
The owner was served with a copy of the tenants' complaint on
October 28, 1988.
In a supplement filed on November 9, 1988 an additional tenant
complained that the backyard and incinerator areas were not cleaned.
However, there is no evidence in the record that the Administrator
notified the owner of this additional complaint.
An inspection was conducted on May 15, 1989, by a member of the
Division's inspection staff. The inspector reported that the
elevator was in poor condition and that it bounced when stopping.
The inspector also found that the incinerator needed to be cleaned
and that the backyard and side of the building were dirty and
littered with papers and other material.
On July 6, 1989, the Administrator issued orders reducing the rents
for rent controlled apartments by $7.00 based on findings that
exterior areas and the incinerator rooms were filthy ($3.00) and
that the elevator was in poor condition and bounced when it stopped
($4.00). The rents for the rent stabilized apartment were reduced
Adm. Rev. Docket No: DH 230390-RO
by the percentage of the most recent guideline adjustment for each
tenants' base which commenced before the effective date of the rent
reductions, November 1, 1988.
As the rent regulated status for the units was not known, the
tenants were advised to abide by the portion of the order (Rent
Control Law or Rent Stabilization Law) applicable to them.
In the petition, the owner requests that the Administrator's
determination be reversed. The petitioner points out that the rent
reductions granted for the filthy incinerator room and exterior
areas were not listed in the complaint. With regard to the
elevator, the petitioner argues that while the tenants' complaint
cited a lack of service, the elevator was in service at the time of
inspection. The petitioner also argues that the finding of poor
elevator service and that the elevator bounced at floor stops were
not valid grounds for rent reductions.
After careful consideration, the Commissioner is of the opinion that
the petition should be granted in part.
The record confirms that the owner did not have notice of the
tenant's complaint of filthy conditions in some areas until the
Administrator's orders issued.
Concerning the elevator, the Commissioner finds that the inspector's
report that the elevator was in poor condition was too vague and
conclusory to provide the Administrator specific findings,
reflecting examination, testing and observation, sufficient to
permit the Administrator to ascertain if there were service
reductions warranting rent reductions. As to the inspector's report
that the elevator bounced when it came to a stop, the Commissioner
is of the opinion that the condition described is insufficient to
ascertain whether the condition was hazardous or whether the
delivery of elevator service to the tenants was affected.
It would be a denial of due process to impose rent reductions where
the owner has not been notified of items requiring attention, given
the opportunity to correct the condition or to assert that there
have been no service reductions, or notified only in the most
general sense, but insufficient to inform the owner of conditions
requiring correction.
Notwithstanding the above, the inspection revealed the existence of
conditions requiring the owner's attention, warranting a remand to
the Administrator for further consideration.
On remand, the Administrator shall ascertain whether the owner
promptly addressed the conditions observed. Subject to the above,
Adm. Rev. Docket No: DH 230390-RO
the Administrator shall redetermine the effective dates for
the rent reduction, or alternatively revoke the rent reductions, as
the facts may warrant.
Additionally, the Administrator shall ascertain the correct status
each of the affected rent-controlled and rent-stabilized tenants.
THEREFORE, in accordance with the applicable provisions of the Rent
Stabilization Law and Code, the Emergency Tenant Protection Act of
1974, the Rent and Eviction Regulations for the City of New York,
Chapter 403, Laws of 1983, as amended by Chapter 102, Laws of 1984,
it is
ORDERED, that this petition be, and the same hereby is granted to
the extent of remanding these proceedings to the District Rent
Administrator for further processing in accordance with this order
and opinion. The automatic stay of so much of the Rent
Administrator's order as directed a retroactive rent abatement is
hereby continued until a new order is issued on remand. However,
the Administrator's determination as to a prospective rent abatement
is not stayed and shall remain in effect until the Administrator's
order issues a new order upon remand.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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