DK130150RO/DK110179RT/DK110180RT
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
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.: DK130150RO
DK110179RT
DAVID SPIELBERG DK110180RT
JEFFREY S. BLAUGRUND
KRAUS REALTY MANAGERS LTD. FOR RENT
HAMPTON COURT ASSOCIATES ADMINISTRATOR'S DOCKET
NO.: DF130060HW
PETITIONERS
----------------------------------x
ORDER AND OPINION GRANTING OWNER'S PETITION FOR ADMINISTRATIVE
REVIEW, DENYING TENANTS' PETITIONS FOR ADMINISTRATIVE REVIEW
AND REVOKING RENT ADMINISTRATOR'S ORDER
The above referenced administrative appeals have been
consolidated as all contain common issues of law and fact.
The above named petitioner-owner and petitioner-tenants filed
Petitions for Administrative Review against an order of the Rent
Administrator issued October 20, 1989. The order concerned various
housing accommodations located at 117-01A Park Lane South. The
Administrator ordered a rent reduction for failure to maintain
adequate heat and hot water.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by these
appeals.
This proceeding was commenced on May 1, 1989 when 27 of the 60
tenants, including the two petitioner-tenants herein, filed a
Statement of Complaint of Decrease in Building-Wide Services
wherein they alleged that there was fluctuation in the building
water pressure and temperature causing alternative scalding and
chilling.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on August 10,
1989 and stated that repiping of the building was completed in
1986, that the boiler has been completely overhauled, and that
other systems related to water temperature and pressure had been
repaired or replaced.
DK130150RO/DK110179RT/DK110180RT
The Administrator ordered a physical inspection of the subject
building. Inspections were conducted on September 22, 1989,
October 3, 1989 and October 4, 1989. The tenants who were not
present for the September 22, 1989 inspection were advised that the
inspector would return during certain specified hours on October 3,
1989 or, if they could not be present on that date, on October 4,
1989.
The inspector reported that 11 tenants including the two
petitioner-tenants herein failed to provide access to their
apartments. Five apartments were found to have adequate heat and
hot water. Finally, eleven apartments were reported to have
inadequate hot water temperature. These eleven apartments were
also reported to have adequate hot water pressure.
The Commissioner notes that Apt. A6A was cited on both the list of
apartments that had adequate hot water and inadequate hot water.
A review of the inspector's report, however, clearly shows that
this inspector reported that this apartment had inadequate hot
water temperature.
The Administrator issued three different orders in this
proceeding on October 20, 1989. With regard to the tenants who
failed to allow access to the inspector, the Administrator denied
the application and terminated the proceeding. The Administrator
issued a second order denying the application for the apartments
where the inspector found adequate hot water. Finally, the
Administrator issued an order granting a rent reduction for the
apartments where the inspector found inadequate hot water
temperature.
On appeal the owner states, among other things, that the
tenants did not complain about a lack of hot water, but rather
fluctuations in the water pressure and temperature causing
alternative scalding or chilling. The petition was served on the
tenants on March 19, 1990.
Ten tenants filed responses wherein they stated, in sum, that
the hot water system remains erratic with extreme changes in
pressure and temperature.
The two tenants who have filed appeals both were denied a rent
reduction based on failure to afford access to the inspector. The
tenant of Apt. 6F states that he was unable to be home due the
priorities of his job. The tenant of Apt. 4D states that someone
was home on October 3 and 4 but that the inspector never appeared.
The petitions were served on the owner.
The owner filed a response to the petition in Docket No.
DK110180RT and stated that the tenant had failed to provide access
on three different dates and that the order denying the complaint
with regard to him should be affirmed.
DK130150RO/DK110179RT/DK110180RT
After careful review of the evidence in the record, the
Commissioner is of the opinion that the owner's petition should be
granted, that the tenants' petitions should be denied and the order
here under review which granted a rent reduction based on the
report of the inspector should be revoked. The orders denying the
complaint or terminating the proceeding based on failure to allow
access are affirmed.
The owner is correct in stating that the tenants' complaint
listed fluctuating water temperature, and not inadequate hot water
temperature, as the condition in need of correction. The
Administrator directed the inspector to investigate whether the
owner was providing hot water, whether the hot water temperature
was adequate and whether there was adequate hot water pressure.
The inspector reported that the hot water temperature was
inadequate in eleven apartments.
The Administrator's order cited a condition as the basis for
the rent reduction that was not set forth in the complaint. To
order a rent reduction for a condition not complained of is a
violation of the owner's due process rights. Accordingly, the
Commissioner is of the opinion that the petition must be granted
and that the Administrator's order granting the rent reduction
based on the report of the inspector must be revoked. The order
denying the complaint for the tenants for whom the inspector
reported adequate hot water is modified to delete Apt. A6A from the
list of apartments and affirmed as modified. The tenants may refile
for a rent reduction based on either fluctuating water pressure and
temperature or inadequate heat and hot water if the facts so
warrant.
With regard to the 11 tenants, for whom the application was
denied based on failure to provide access, including both
petitioner tenants herein, the Commissioner is of the opinion that
the Administrator correctly dismissed the complaint. The tenants
in question were given proper notice of the scheduled inspections
but did not give the required access. The petition of the tenant
in Apt. 4D does not offer any acceptable explanation to excuse his
failure to either be present on the inspection dates or to insure
that someone would be in the apartment to allow access. With
regard to the tenant of Apt. 4D, the report of the inspector
clearly states that the tenant was not at home on the three dates
in question. This report is entitled to more probative weight than
the unsupported allegations of the tenant. The order denying the
application for these 11 tenants is, therefore, affirmed.
The Commissioner notes that the owner's application for rent
restoration (Docket No. DL130072OR) was granted on August 29, 1990.
THEREFORE, pursuant to the Rent Stabilization Law and Code and
Rent and Eviction Regulations it is
DK130150RO/DK110179RT/DK110180RT
ORDERED, that the owner's petition be, and the same hereby is,
granted, and that the Rent Administrator's order be, and the same
hereby is, revoked with regard to the tenants of Apts. A5A, A5B,
A6B, A3G, A5G, A5D, A4N, A3N, A6A, A6G AND A3E and it is further
ORDERED, that the tenants' petitions be, and the same hereby
are denied, and that the Rent Administrator's order be, and the
same hereby is, affirmed with regard to the tenants of Apts. A4B,
A2K, A5L, A4C, A3B, A2B, A1E, A4G, A6F, A4D, A5F, A3C, A4E, A1A AND
A1J. Any of the tenants who were granted a rent reduction and now
owe arrears by reason of the Commissioner's determination herein
may pay off said arrears in twelve equal monthly installments or
immediately if they have vacated.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
|
