DJ430035RO
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.: DJ430035RO
301 REALTY CO. RENT
ADMINISTRATOR'S DOCKET
NO.: CJ430139B
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND MODIFYING RENT ADMINISTRATOR'S ORDER
On September 29, 1989 the above named petitioner-owner filed
a Petition for Administrative Review against an order of the Rent
Administrator issued August 30, 1989. The order concerned various
housing accommodations located at 301 East 38th Street, New York,
N.Y. The Administrator directed restoration of services and
ordered a 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
appeal.
This proceeding was commenced on October 25, 1988 when 87 of
the 154 tenants filed a Statement of Complaint of Decrease in
Building-Wide Services wherein they alleged that the owner was not
maintaining certain services including cracked sidewalks, courtyard
in poor condition, bulkheads and skylights in poor condition,
leaning vent stacks, exterior walls and public area windows in poor
condition, rusted fire escapes, discontinuation of storage space
and the fact that one passenger elevator is now being used as a
service elevator.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner did not file a response.
The Administrator ordered a physical inspection of the subject
building. The inspection was conducted on May 4, 1989 and May 8,
1989. The inspector reported the following:
1. Entire building undergoing extensive renovation
including courtyard and exterior walls,
DJ430035RO
2. Sidewalk cracked,
3. Bulkheads and skylights in poor condition,
4. Vent stacks leaning,
5. Public area windows in poor condition,
6. Rusted fire escapes,
7. Discontinuation of storage space,
8. One elevator being used as freight elevator.
All other services complained of were found to be maintained.
The Administrator issued the order here under review on August
30, 1989. With regard to rent controlled tenants, a rent reduction
of $27.00 per month was ordered. Rent stabilized tenants were
granted a rent reduction of an amount equal to one guideline
adjustment.
On appeal the owner, as represented by counsel, states that
the tenants have used this rent reduction proceeding as a vehicle
to undermine the conversion to cooperative ownership that is taking
place in the building and that the building is undergoing extensive
renovations in conjunction with the conversion. The owner then
presents a defense to each of the cited conditions in the order
here under review and requests that the order be revoked. The
petition was served on the tenants on February 26, 1990.
The tenants filed a detailed joint response on March 1, 1990
and stated, in sum, that the owner's petition is totally without
merit, that the owner was not maintaining services and that the
order here under review should be affirmed. One individual tenant
filed a response on March 19, 1990 and stated, in relevant part,
that the storage space was not being provided to the tenants but,
rather, was being used by the owner for storage of renovation
material and debris.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be granted
in part and the order here under review should be affirmed as
modified.
With regard to all issues other than the Administrator's
findings regarding the courtyard and exterior walls, the
Commissioner notes that the scope of review in an administrative
appeal is limited to facts or evidence presented to the
Administrator unless it can be shown that such facts or evidence
DJ430035RO
could not be presented. The owner was served with a copy of the
complaint and afforded an opportunity to respond. The owner did
not file a response and has offered no explanation to excuse this
default. Therefore, the Commissioner will not consider the
defenses the owner raises in the petition.
With regard to the findings regarding the courtyard and
exterior walls, the Commissioner has reviewed the record and is of
the opinion that the inspector's report that the building is
undergoing extensive renovation does not constitute a failure to
maintain required or essential services for which a rent reduction
is warranted. The inspector did not find that the courtyard or
exterior walls were defective in any way--only that they were being
renovated. Accordingly, the Commissioner revokes these two
findings and the $6.00 per month in rent reduction ordered for rent
controlled tenants. With regard to rent stabilized tenants, the
order here under review is modified to delete the two findings, the
rent reduction ordered for rent stabilized tenants is affirmed and
the automatic stay of the retroactive rent abatement that resulted
by the filing of this petition is vacated upon issuance of this
order and opinion.
The Commissioner notes that the owner applied for rent
restoration. The application, which was assigned Docket No.
DI430130OR, was granted in part for rent controlled tenants and
denied for rent stabilized tenants in an order issued on April 19,
1990. The owner reapplied for rent restoration and said
application was granted in an order bearing Docket No. EE430008OR
which was issued on February 15, 1991.
THEREFORE, pursuant to the Rent Stabilization Law and Code and
Rent and Eviction Regulations for New York City it is
ORDERED, that this petition be, and the same hereby is,
granted in part, and that the Rent Administrator's order be, and
the same hereby is, affirmed as modified herein. Any rent
controlled tenant who owes arrears by reason of the Commissioner's
determination herein may pay off said arrears in installments of
$6.00 per month or immediately if the apartment is vacated.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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