DJ 210241 RO; EF 410077 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. 5819
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.: DJ 210241 RO
EF 410077 RO
CHARLES BIRDOFF AND COMPANY,
DRO DOCKET NOS.: CK 430094-B
CL 630070 B
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
AND
TERMINATING PETITION
On October 27, 1989 and June 4, 1990, the above-named petitioner
owner filed near identical Administrative Appeals against orders
issued by the District Rent Administrator on September 25, 1989
and May 16, 1990, concerning housing accommodations known as 436
East 76th Street, New York, New York, Various Apartments.
Subsequent thereto, the owner filed a petition in Supreme Court,
pursuant to Article 78 of the Civil Practice Law and Rules,
requesting that the court direct the Division to issue a
determination of the owner's administrative appeals.
The Commissioner deems it appropriate to consolidate the owner's
administrative appeals for determination under this Order and
Opinion.
The Administrative Appeals are being determined pursuant to the
provisions of 9 NYCRR 2202.16.
The issue herein is whether the District Rent Administrator
properly determined the tenants' complaint of a reduction in
services.
The first order issued by the District Rent Administrator was
revoked because it improperly referred to the apartments affected
by the order as Rent Stabilized, when in fact, it should have
affected only rent controlled apartments. An amended order was,
therefore, issued by the District Rent Administrator, on
May 16,1990.
The tenants commenced this proceeding by filing a building-wide
services complaint asserting that the owner had failed to
maintain services in the subject building.
A notice of Transmittal of Tenant's Complaint was mailed to the
owner on January 19, 1989; but the owner did not file an answer
with the Rent Administrator.
DJ 210241 RO; EF 410077 RO
Thereafter, on June 26, 1989, an inspection of the subject
premises was conducted by a Division of Housing and Community
Renewal (DHCR) inspector, which confirmed the existence of
certain defective conditions and the correction of other
defective conditions.
The Rent Administrator's amended order of May 16, 1990, directed
restoration of the defective conditions and a $6.00 per month
reduction in the Maximum Legal Rent of all rent controlled
apartments.
On appeal, the petitioner-owner essentially alleged in both
petitions that a storage area is not a required service; that
peeling paint and plaster is a problem de minimus in nature,
which had been attended to by the building employees; that
pointing of the air-shaft parapet wall is also a de minimus
problem, which does not directly affect any of the tenants; and
that an affidavit from the superintendent of the subject building
attests that all of the tenants' service complaints have been
cured.
After a careful consideration of the entire evidence of record
the Commissioner is of the opinion that the administrative
appeal under Docket No. DJ 210241 RO should be denied and that
the administrative appeal under Docket No. EF 410077 RO should be
terminated.
Insofar as the amended order superceded the District Rent
Administrator's order issued on September 25, 1989, the
Commissioner finds that the petition filed on October 27, 1989 is
moot and should be terminated.
Concerning the issue of storage space, since the owner failed to
rebut the tenant's allegations made to the Administrator, the
owner may not challenge the Administrator's finding on appeal.
Referring to the petition filed by the owner on June 4, 1990, the
owner's petition does not make clear whether it is the owner's
contention that repairs had been made before the building was
inspected or whether the contention is that repairs were made
following the issuance of the Rent Administrator's order. If it
is the former, then the owner's allegation is belied by the
report of the agency inspector. If it is the latter, then the
Rent Administrator's order reducing the rent was nevertheless
correct when issued, and this order is issued without prejudice
to the owner filing a restoration of services application.
The Commissioner notes that the agency inspection report has
greater probative value than the self-serving and unsupported
allegations of the owner on appeal.
The Commissioner does not agree with the owner's contention that
other conditions are of a "de minimus" nature, unworthy of rent
reduction.
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations, it is
DJ 210241 RO; EF 410077 RO
ORDERED, that the petition under Docket No. DJ 210241 RO be, and
the same hereby is terminated; that the petition under Docket No.
EF 410077 RO be, and the same hereby is denied and that the
District Rent Administrator's order be, and the same hereby is
affirmed.
ISSUED:
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ELLIOT SANDER
Deputy Commissioner
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