Adm. Rev. Docket Number: DJ 230253-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.: DJ 230253-RO
:
EMPIRE REALTY, DISTRICT RENT ADMINISTRATOR'S
DOCKET NO.: CL 230097-B
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 13, 1989, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on
September 21, 1989, by the Rent Administrator at Gertz Plaza,
Jamaica, New York, concerning the housing accommodation known as
150 Corbin Place, Brooklyn, New York wherein the Administrator
granted rent reductions based on a finding of building-wide service
reductions.
The applicable law is Section 2520.6(r) and 2523.4 of the Rent
Stabilization Code and Section 2202.16 of the Rent & Eviction
Regulations.
The issue in these proceedings is whether the Administrator's
determination was proper.
The tenants initiated the proceedings on October 26, 1988 by filing
a complaint of decreased services building-wide, alleging in
pertinent part, that seepage of rain water through the roof and
bricks had soiled interior ceilings and walls. The tenants also
reported that pointing commenced by the owner was not completed.
The owner's submissions received on or about January 17, 1989
indicated, among other items, that roof leak repairs had been
completed prior to January 3, 1989 and that brick pointing had been
undertaken on the top 14 feet of the building.
An inspection was conducted on May 25, 1989 by a member of the
Division's inspection staff. The inspector reported that the north
bulkhead ceiling was leak damaged and that a large area of plaster
above the roof door was missing; that the south bulkhead ceiling and
walls had leak damage and peeling plaster; and that there were small
areas of peeling plaster in the hallway ceiling throughout the
building. Other conditions complained about by the tenant were
found to be maintained.
Based on a finding that there was peeling paint and plaster
throughout the public area hallways, and bulkhead walls and ceiling,
the Administrator granted rent reductions of $4.00 for rent
controlled tenants. The rents of rent stabilized tenants were
reduced by the percentage of the most recent guideline adjustment
for each tenant lease which commenced before the effective date of
the rent reduction, December 1, 1988.
Adm. Rev. Docket Number: DJ 230253-RO
The petitioner challenges the Administrator's determination arguing
that it was denied due process, in that the Administrator granted a
rent reduction for items not specifically stated in the tenant's
complaint, and in that the owner was not notified that an inspection
was made, nor provided an opportunity to address the inspectors
findings, nor permitted a hearing.
In addition, the petitioner argues that the rent reduction were not
warranted as peeling paint and plaster is a de minimus condition
that occurs normally despite ongoing maintenance or recurs from time
to time, and is normally addressed as part of periodic maintenance.
The petitioner also argues that rent reductions should not have been
granted to tenants who failed to sign the complaint.
The petitioner arguement that it was denied due process are
rejected. The tenants clearly stated that walls and ceilings were
damaged. The owner was clearly on notice of the defective
conditions, albeit the precise language did not mirror the
Administrator's findings, when it was served a copy of the tenants'
complaint. The fact that the inspector reported no evidence of
defective pointing to exterior bricks did not relieve the owner of
its responsibility to ascertain the underlying cause of the damaged
plaster, if different than that surmised by the tenants, or of the
responsibility to correct the conditions found.
The petitioner's argument of a denial of due process for failure to
serve notice of the inspection or to serve copies of the inspection
reports are, similarly rejected. The Division's procedures do not
require the Division to give the parties notice of inspections
unless, in the Division's discretion, their presence is required;
nor to apprise the parties of the results. Moreover, the inspection
report, prepared by a rent agency employee not a party to the
proceedings and not an adversary to the owner, was properly placed
in the record for the Administrator's consideration, and was
entitled to substantial weight.
The Commissioner also rejects the petitioner's characterization of
the peeling paint and plaster throughout the premises as a de
minimus item which did not warrant a rent reduction. On the
contrary, the Division has consistently held peeling paint and
plaster to be a failure to maintain services, rather than a
condition that occurs normally, addressed as part of periodic
maintenance. Moreover the Courts have held that once the Division
determines that a diminution of service has occurred, the Division
must order rent reductions. Hyde Park Gardens vs DHCR,140 AD2d 351,
527 NYS 2d 841 (A.D. 2nd Dept) affd., 73 NY 2d 998 541 NYS 2d 345
(Ct. App 1989).
With regard to the request for a hearing, the Commissioner notes
that the Rent Stabilization Code does not require the Administrator
to hold a hearing. In the absence of such a mandate, all that due
process requires is that reasonable notice be afforded to the
parties to the proceedings and that they have an opportunity to
present their objectives. The record indicates that the owner had
ample opportunity and did, in fact, submit material. Accordingly,
it cannot successfully claim that it was denied due process.
Adm. Rev. Docket Number: DJ 230253-RO
Concerning the petitioner's request to revoke rent reductions for
tenants who did not sign the complaint, the Commissioner notes that
rent control provisions permit all rent controlled tenant to benefit
from building-wide reductions regardless of whether they signed a
complaint. Rent stabilization provisions provide that tenants may
apply for rent reductions.
THEREFORE, in accordance with the Emergency Tenant Protection Act of
1974, and Chapter 403 of the Laws of 1983, as amended by Chapter 102
of the Laws of 1984, it is
ORDERED, that this petition be, and the same hereby is, denied, and
that the District Rent Administrator's order be, and the same hereby
is, affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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