DH 530372-RO; EH 530100-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
----------------------------------x S.J.R. NOS.: 5360, 5362
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NOS.:
DH 530372-RO
2461 AMSTERDAM COMPANY, EH 530100-RO
RENT ADMINISTRATOR'S
DOCKET NOS.:
PETITIONER CE 530017-B
----------------------------------x DH 530210-OR
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
The Commissioner has consolidated these petitions as they involve
common questions of law and fact.
On August 25, 1989, the above-named owner filed a petition for
administrative review of an order issued on July 12, 1989, by a
Rent Administrator concerning various housing accommodations in
the premises known as 2461 Amsterdam Avenue, New York, New York,
wherein rent was reduced due to a diminution of services.
On August 28, 1990, the Commissioner issued an order and opinion
granting the owner's petition in part and modifying the Re t Ad-
ministrator's order.
Subsequent thereto, the owner sought judicial review of the
Commissioner's August 28, 1990 order and opinion in the Supreme
Court, County of New York pursuant to Article 78 of the Civil
Practice Law and Rules.
The court vacated the Commissioner's determination on the owner's
PAR and, remanded the proceeding to the Division of Housing and
Community Renewal for reconsideration de novo.
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. Although the
petition was filed more than 35 days after the issuance of the
administrator's order, it is, nonetheless, deemed timely due to
the administrator's failure to serve a copy of the order on the
owner.
On March 17, 1988, various tenants of the subject building, filed
DH 530372-RO; EH 530100-RO
an application for rent reductions based on the owner's alleged
failure to maintain services alleging, inter alia, broken front
entrance steps, defective roof broken in need of tar, water leaks
to apartments on fifth floor, defective drainage in various
apartments in the "A" line, and hallways and walls cracked and in
need of painting on floors 1, 2, 3 and 4.
The tenants in their statement of complaint, provided the admin-
istrator with an incorrect owner's address. In reply to the
administrator's request, the tenants on February 2, 1989, sub-
mitted the owner's correct address. Service of the complaint on
the owner was effectuated on February 6, 1989.
On March 24, 1989, the owner interposed an answer to the tenants'
complaint wherein it alleged that a major renovation was com-
menced on August 23, 1988 and that work was still in progress.
On April 6, 1989, a physical inspection of the subject building
and certain apartments was carried out by the Division of Housing
and Community Renewal (DHCR). The inspector, in his report,
noted inter alia "that there was no evidence of broken front
entrance steps." In regards to the roof he noted, "there are
bubbles and patches in some areas. Roof floor appears in good
to fair condition." The inspector confirmed the existence of
slow drainage in apartments 6-A and in the bathroom wash basin of
apartment 5-A. In regard to the allegation regarding the hallway
walls on the first, second, third, and fourth floors, the in-
spector stated that they had been patch plastered. The inspector
noted peeling paint and plaster on the sixth floor. The remaining
items of complaint were found by the inspector not to be as
alleged by the tenants.
On July 12, 1989, the Rent Administrator issued the order here
under review finding that a diminution of services had occurred
and reducing the tenants' rents to the levels in effect prior to
the last rent guideline increase which commenced before the
effective date of the rent reduction, and reducing rents of the
rent controlled apartments by eighteen dollars monthly. The
items cited by the Rent Administrator as bases for the rent
reduction were the following:
1. The vestibule steps are broken, cracked and
chipped.
2. The roof is defective, requires repairs.
3. There is peeling paint and plaster in the public
area hallways, walls and ceilings.
4. There is evidence of defective drainage system in
various apartments, wash basin stoppage.
In its petition for administrative review the owner requests
reversal of the administrator's order alleging that it was
"arbitrary, capricious, and malicious," that it was never served
with a copy of the decision, and that there was no verification
of independent complaints. Attached to the owner's petition are
a photocopy of the owner's answer, with proof of mailing, copies
of cancelled checks in payment of certain repairs and work on the
building, and copies of contractor's bills and contracts.
DH 530372-RO; EH 530100-RO
In answer to the owner's petition the tenants allege, inter alia
that with the exception of the entrance steps, the complained of
conditions continue to exist.
After careful consideration the Commissioner is of the opinion
that this petition should be granted in part and that the Rent
Administrator's order should be revoked as to all tenants except
the tenants of apartments 5-A and 6-A.
In regards to the four items cited as bases for the rent reduc-
tions the Commissioner finds as follows:
1. The vestibule steps were not an item alleged by the
tenants in the statement of complaint and the owner was
not on notice of this item. Accordingly the finding of
the Rent Administrator was violative of due process and
can not be sustained.
2. The roof was found to be in "good to fair condition"
despite the bubbles and patches in some areas. The
gravamen of the tenants' complaint was that the apart-
ment on the fifth floor suffered leaks. The inspec-
tor's report and Rent Administrator's order are silent
on the existence of fifth floor apartment leaks. The
Commissioner further notes that if a tenant's apartment
has leak or water damage a tenant may obtain a re t re-
duction based thereon irrespective of causation whether
the source of the damage be faulty plumbing, a need for
pointing, interstitial leakage, etc... This order and
opinion is issued without prejudice to the tenants'
rights to file complaints of decreased service in their
individual apartments due to leakage or water damage if
the facts so warrant. Hence, the Commissioner finds
that this item (2) - defective roof, can not be sus-
tained as a basis for rent reductions.
3. The tenants complained of cracked walls in need of
painting on floors 1, 2, 3, and 4. The inspector's
report noted that these walls had been patch plastered
and was silent on a need for painting. The peeling
paint and plaster condition cited in the order under
review was based on the condition found on the sixth
floor. The tenants' statement of complaint did not
include any allegation of sixth floor damage, the owner
was not on notice of the condition and, accordingly,
the Rent Administrator's determination regarding this
item was violative of due process and can not be sus-
tained as a basis for rent reductions.
4. The Inspector's report cited evidence of slow drainage
in apartments 5-A and 6-A. This item was alleged by the
tenants in their statement of complaint and the owner
was on notice of the complaint. Hence, this item, the
Commissioner finds, should be sustained as modified as
a basis for rent reductions for the tenants of apart-
DH 530372-RO; EH 530100-RO
ments 5-A and 6-A; however, the drainage condition does
not pertain to any other tenants in the building. As
to the other tenants in the building this basis for
rent reductions can not be sustained. In regards to
the tenants of apartments 5-A and 6-A the rent reduc-
tion which was ordered should be modified. The
Commissioner notes that the Rent Administrator made the
reductions effective July 2, 1988, but that the owner
was not served with a copy of the complaint until
February 6, 1989. Since the owner was not notified
until February 6, 1989, the rent reductions' effective
date should have been March 1, 1989, the first rent
payment date after service of the complaint on the
owner. Accordingly, the Commissioner finds that the
administrator's order should be modified to change the
effective date of the rent reductions from July 2, 1988
to March 1, 1989. The Commissioner further notes that
the owner (in Docket No. DH 530210-OR) filed an
application for rent restoration on November 2, 1989
alleging inter alia that the drainage condition cited
herein had been corrected and a physical inspection
conducted during that proceeding revealed that
"drainage in all the apartments is in good worki g con-
tion." Accordingly the Commissioner finds that the
rents of apartments 5-A and 6-A should be restored ef-
fective December 1, 1989. (Therefore rent reductions
are sustained for apartment 5-A and 6-A for the period
March 1, 1989 through Novmber 30, 1989.)
In regard to the owner's petition EH 530100-RO which has been
consolidated herein, the Commissioner finds that it is rendered
moot by the issuance of this order and opinion and that it should
be terminated. The Rent Administrator's order DH 530210-OR
should be modified in accordance with the Commissioner's findings
herein cf. supra paragraph 4.
Although by issuance of this order and opinion the Commissioner
revokes all rent reductions with the exception of apartments 5-A
and 6-A based upon lack of notice and a violation of due process,
the Commissioner notes that since the issuance of Order No. CE
530017-B on July 12, 1989 the owner has been on notice of the
defective conditions which were noted by the DHCR inspector.
Accordingly, the owner is directed to correct these conditions
within thirty days of the issuance of this order and opinion if
it has not already done so. The tenants are advised to notify
the Compliance Bureau of this Division in the event that the
owner, at the expiration of this period, has failed to do so.
If there are arrears due the owner as a result of the issuance of
this order and opinion the tenants may pay off such arrears in
twelve equal monthly installments beginning with the first rent
payment date after the issuance of this order and opinion.
DH 530372-RO; EH 530100-RO
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition (DH 530372-RO) be, and the same
hereby is, granted in part, and that the Rent Administrator's
order (CE 530107-B) be, and the same hereby is revoked as to all
tenants except the tenants of apartments 5-A and 6-A for whom it
is
ORDERED, that Rent Administrator's order CE 530017-B be, and the
same hereby is, modified to the extent of granting rent reduc-
tions for the period March 1, 1989 through November 30, 1989 and
it is further
ORDERED, that Rent Administrator's order DH 530210-OR be, and the
same hereby is revoked as to all tenants except the tenants of
apartments 5-A and 6-A for whom it is
ORDERED, that Rent Administrator's order DH 530210-OR be, and the
same hereby is modified to the extent of restoring rent effective
December 1, 1989, and it further
ORDERED, that administrative review proceeding EH 530100-RO be,
and the same hereby is, terminated.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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