DJ 130141 RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: DJ 130141 RO
PLAZA REALTY INVESTORS RENT
NO.: DD 130058 B
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 19, 1989 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued September 14, 1989. The order concerned
various housing accommodations located at 132-40 Sanford Avenue,
Flushing, N.Y.. The Administrator ordered a building-wide rent
reduction for failure to maintain required services.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
This proceeding was commenced on April 18, 1988 when 47 of the
94 tenants of the building filed a Statement of Complaint of
Decrease in Building-Wide Services wherein they alleged the
following services deficiencies:
1. Lobby--All decorations (benches, curtains, statues,
and flowers) removed. Mirrors broken. Poor quality
2. Public areas in need of cleaning,
3. Systemic lack of heat/hot water. Boiler not
4. Elevators inoperative,
5. Intercoms defective,
6. Roof doors and alarm system broken,
7. Smoke on higher floors due to clogged air shaft,
DJ 130141 RO
8. Lack of exterminator service; rodent infestation,
9. No lights in back of building,
10. Front door lock broken.
The tenants annexed documentation to the complaint which showed
their attempts to get repairs done.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner failed to respond to the
The Administrator ordered a physical inspection of the subject
building. The inspection was conducted on June 22, 1989 and
revealed the following:
1. Inadequate lighting in rear of building,
2. Vermin infestation in public areas,
3. Vestibule door lock broken,
4. Intercom system inoperative,
5. Peeling paint and plaster in halls due to leaks;
public walls stained and contain graffiti,
6. Lobby benches removed,
7. Lobby curtains/drapes removed,
8. Incinerator rooms full of garbage and debris and
emit foul odors.
The following services were found to have been maintained:
1. No evidence of clogged air shafts,
2. No evidence of smoke build-up from incinerators,
3. Roof door alarms operative and doors are secure,
4. Elevators operative,
5. No evidence of broken mirrors.
The Administrator issued the order here under review on
September 14, 1989 and ordered a rent reduction of an amount equal
to the most recent guideline adjustment for all rent stabilized
tenants. The rent reduction was effective June 1, 1989.
DJ 130141 RO
On appeal the owner, through counsel, states that it should be
excused from its procedural default in failing to answer the
complaint by reason of the incompetence of the building agent who,
it is claimed, disregarded the complaint. The owner states that
the agent has been dismissed from her position and that to prohibit
it from responding to the complaint at this stage would be
inequitable and a violation of its rights to due process. The
owner also made the following additional arguments in seeking
reversal or modification of the order here under review:
1. It was denied due process in not being given notice
of the inspection and being served with a copy of
the inspector's report,
2. There was no factual basis for assuming that a
lobby sitting area was required as a matter of law,
3. It should not be held liable for recurring acts of
4. The order here under review misstates certain of
the inspector's findings,
5. Refuse accumulation and vermin are attributable to
acts of the tenants,
6. The finding regarding the rear lighting is vague
7. The finding concerning peeling paint and plaster
was inconclusive and/or reported a condition not
alleged in the complaint.
Various tenants filed responses wherein they stated, in sum,
that the order here under review should be affirmed.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
It is an established principle that the scope of review in an
administrative appeal is limited to a review of the facts or
evidence that were before the Rent Administrator unless it is shown
that such facts or evidence could not have been offered or included
in the proceeding prior to issuance of the order being appealed.
Should the owner fail to respond below, it is barred from
presenting it's defenses on appeal. Therefore, for the
Commissioner to consider the owner's defenses on the merits, the
procedural default herein must be excused. The owner argues that
the incompetence of its now-dismissed agent should serve to excuse
it. The Commissioner finds this defense to be inadequate.
Pursuant to 9 NYCRR 2520.6 (i) an "owner" is defined to include
duly designated agents. Under general principles of agency law,
DJ 130141 RO
information possessed by the agent is imputed to its principal.
Therefore, the owner may not avoid responsibility for a default by
claiming incompetence on the part of an agent (Accord: AJ 110529
RO). Since the default herein is inexcusable, the Commissioner
will not consider the other arguments set forth by the owner. The
order here under review is affirmed.
It is noted that the owner's rent restoration application was
granted on July 16, 1990 (Docket No. ED 130011 OR).
THEREFORE, pursuant to the Rent Stabilization Law and Code it
ORDERED, that this petition be, and the same hereby is,
denied, and that the Rent Administrator's order be, and the same
hereby is, affirmed.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner