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. NO. 5823
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS. DK 610312-RO
ED 610246-RO
BEDFORD PARK PROPERTIES, : FA 630271-RO
DISTRICT RENT ADMINISTRATOR'S
PETITIONER : DOCKET NOS. DH 610001HW
------------------------------------X DJ 630092HW
EG 630029OR
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
On November 22, 1989, the above-named owner filed a petition for
administrative review (Docket No. DK 610312RO) of an order issued on
October 24, 1989 (Docket No. DH 610001HW) concerning the housing
accommodations known as Apartment 5C, 2960 Decatur Avenue, Bronx, New
York, wherein rent was reduced due to a diminution of service.
On April 19, 1990, the above-named owner filed a petition for
administrative review (Docket No. ED 610246-RO) of an order issued on
March 16, 1990 (Docket No. DJ 630092HW) concerning various
accommodations in the premises known as 2960 Decatur Avenue, Bronx,
New York, wherein rent was reduced due to a diminution of service.
On January 18, 1991, the above-named owner filed a petition for
administrative review (Docket No. FA 630271RO) of an order issued on
December 19, 1990 (Docket No. EG630029OR) concerning various
accommodations in the premises known as 2960 Decatur Avenue, Bronx,
New York, wherein the Administrator denied the application of the
owner to restore the rent based on a restoration of services.
Subsequently, and after more than 90 days had elapsed from the time it
filed its petitions for administrative review, the owner deemed its
petitions as having been denied, and sought judicial review in the
Supreme Court of the State of New York pursuant to Article 78 of the
Civil Practice Law and Rules.
After considering the Article-78 petition, the Court issued an order
remitting the proceeding to the New York State Division of Housing and
Community Renewal (DHCR) for further consideration.
DOC. NOS.: DK 610312-RO, et al.
These petitions for administrative review contain common issues of law
and fact. Therefore, the Commissioner is consolidating these
petitions and this order and opinion is dispositive of all.
The Commissioner has reviewed all the evidence in the record and has
carefully considered that portion of the record relevant to the
issues raised by the petitions for review.
On August 2, 1989, the tenant occupying Apartment 5C filed an
application (Docket No. DH 610001HW) for a rent reduction based on the
owner's failure to maintain certain services, to wit: inadequate heat
and hot water.
The owner's answer contended that the only major disruptions in heat
or hot water services were caused by the necessity for boiler repair,
and that minor disruptions were promptly attended to.
On October 17, 1989, a physical inspection of the subject apartment
was carried out by the Division of Housing and Community Renewal
(DHCR). The inspector, in his report, indicated that the temperature
of the hot water was inadequate. No heat was required at the time of
the inspection.
On October 24, 1989, the Administrator issued an order here under
review finding that a diminution of service had occurred and reducing
the rent to the level in effect prior to the last rent guideline
increase which commenced before the effective date of the order.
In its petition for administrative review (Docket No. DK 610312RO) the
owner contends that the boiler had been recently repaired. Further,
it contends that during the week that the inspection was conducted
adjustments were being made to the boiler and that no other tenants'
complaints were received that week.
On October 5, 1989, thirty-four tenants were signatories to a
building-wide application (Docket No. DJ630092HW) for a rent reduction
based on the owner's failure to maintain adequate heat and hot water.
The owner's answer contended, in substance, that any disruptions in
services were minor and that these minor disruptions were always
promptly attended to.
On January 22, 1990, a physical inspection of various apartments was
carried out by DHCR. The inspector, in his report, indicated that the
temperature of the hot water was inadequate in every inspected
apartment. The heat was reported to be adequate.
DOC. NOS.: DK 610312-RO, et al.
On March 16, 1990, the Administrator issued an order here under review
finding that a diminution of services had occurred and reducing the
rent to the level in effect prior to the last rent guideline increase
which commenced before the effective date of the order. The
Administrator's determination was applicable to thirty-three of the
thirty-four signatories of the complaint. The thirty-fourth signatory
was the tenant occupying apartment 5C. The complaint of that tenant
was dismissed because it was a duplicate of Docket No. DH610001HW
previously decided.
In its petition for administrative review (Docket No. ED 610246RO) the
owner contends that the hot water problems were only intermittent and
that final repairs were made to the boiler on January 30, 1990. An
invoice is include to document this claim. Further, the owner states
that it believed that the inspector visited only one or two apartments
and that this small sample was insufficient to grant a decrease to
thirty-three tenants.
Numerous tenants filed answers to the owner's petition for review
stating, among other things, that the lack of hot water is a problem
which has existed for years and that the problem is substantial and
continual.
On June 5, 1990, the owner filed thirty-three applications to restore
rent, alleging that all services had been restored. All of these
thirty-three applications were consolidated under Docket No. EG630029-
OR.
On November 21, 1990 a physical inspection of various apartments was
carried out by DHCR. The inspector, in his report, indicated that the
temperature of the hot water was inadequate in every inspected
apartment. The heat was reported to be adequate.
On December 14, 1990, the Administrator issued orders here under
review denying the owner's applications to restore rents.
In its petition for administrative review the owner repeats the
allegations made below and in its other petitions for review, namely,
that any disruption in services had been finally corrected on January
30, 1990. It also points to two individual complaints of inadequate
hot water filed in the subject building which were dismissed after an
inspection disclosed that the water temperature in these two specific
apartments was adequate.
After careful consideration, the Commissioner is of the opinion that
these petitions should be denied.
DOC. NOS.: DK 610312-RO, et al.
First, the owner's allegation that an insufficient number of
apartments were inspected to constitute a representative sampling is
without merit. In the inspection of January 22, 1990 eight apartments
were inspected with respect to the original services complaint. Each
and every apartment inspected had inadequate hot water. None of the
inspected apartments had adequate water temperature. Clearly, this
represents a sufficiently large sampling of apartments to warrant a
rent reduction for all signatories of the complaint, as it indicates
a problem of a building-wide nature. Similarly, in the inspection of
November 21, 1990 ten apartments were inspected. Each and every
apartment inspected had inadequate hot water. None of the inspected
apartments had adequate water temperature. Again, the sampling of
apartments was sufficiently large to sustain the Administrator's
denial of the owner's application for a restoration of rent.
Second, the owner's claim that two inspections of individual
complaints of inadequate hot water resulted in a dismissal of the
complaint is insufficient to reverse the Administrator's orders. One
inspection of Apartment 2E under Docket No. DH 610011HW predated these
proceedings. Subsequently, Apartment 2E again was one of the
inspected apartments and was found to have inadequate hot water. The
second inspection cited by the owner involved Apartment 2G under
Docket No. EE610032HW. The second case involved a non-signatory of
the complaint, and no rent reduction was ever granted to the tenant in
this apartment.
Pursuant to Section 2523.4(a) of the Rent Stabilization Code:
A tenant may apply to the DHCR for a reduction of
the legal regulated rent to the level in effect
prior to the most recent guidelines adjustment,
and the DHCR shall so reduce the rent for the
period for which it is found that the owner has
failed to maintain required services.
Required services are defined in Section 2520.6(r) to include an
adequately maintained hot water supply.
The Commissioner finds that the Administrator properly based his
determinations on the entire record, including the results of the on-
site physical inspections conducted on October 17, 1989, January 22,
1990, and November 21, 1990 and that pursuant to Section 2523.4(a) of
the Code, the Administrator was mandated to reduce the rent upon
determining that the owner had failed to maintain services. In
addition, the Administrator correctly denied the owner's applications
for restoration of rents.
DOC. NOS.: DK 610312-RO, et al.
This Order and Opinion is issued without prejudice to the owner's
rights as they may pertain to a further application to the Division
for a restoration of rent based upon the restoration of services.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it
is
ORDERED, that these petitions be, and the same hereby are, denied, and
that the Rent Administrator's orders, be, and the same hereby are,
affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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