STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: DH430024RO
FRANK & WALTER EBERHARDT RENT
NOS.: BG430040B BF410586S
PETITIONER BG420459S BF430580S
----------------------------------x BF410587S BF430588S
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND REMANDING PROCEEDING TO RENT ADMINISTRATOR
On August 8, 1989 the above named petitioner-owner filed a
Petition for Administrative Review against orders of the Rent
Administrator concerning various housing accommodations located at
235 East 81st Street, New York, N.Y. The Administrator directed
restoration of services and ordered rent reductions for failure to
maintain required services.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
The petitioner is appealing orders of the Administrator issued
as a result of one building-wide and six individual apartment
complaints wherein the tenants alleged that the owner was not
maintaining certain required or essential services.
The building-wide proceeding was commenced on July 6, 1987
when tenants of 15 of the 22 apartments joined in filing a
Statement of Complaint of Decrease in Building-Wide Services
wherein they alleged that the owner was not maintaining certain
required services. Specifically, the tenants stated that the
public area windows were hard to open and close and the owner had
removed certain storage bins from the basement. The individual
apartment complaints were filed by 1 rent controlled and five rent
stabilized tenants who alleged, in sum, that window screens were
not being provided.
The owner was served with copies of the complaints and
afforded an opportunity to respond. The owner filed a response on
January 20, 1988. This response was a consolidated response to 24
different proceedings including the seven appealed herein. The
owner raised a common defense to each. This defense consisted of
an objection to the agency exercising jurisdiction over these
proceedings because the subject building had been "substantially
rehabilitated" within the meaning of Section 5(a)(5) of the
Emergency Tenant Protection Act (ETPA). The owner provided
documentation, consisting of lists of amounts expended on building
renovation, in support of the "substantial rehabilitation" claim.
The Administrator ordered a physical inspection of the subject
building. The inspection in the building-wide proceeding was
conducted on April 28, 1988. The building was reinspected on June
1, 1988. The inspector reported that the public area windows were
painted closed and that the storage bins were removed from the
basement. All other services were found to have been maintained.
The inspections conducted in the individual apartment proceedings
confirmed the tenants' assertions of missing window screens.
On May 3, 1988 the Administrator sent a notice to the parties
in Docket No. BG430040B (the building-wide proceeding), wherein the
tenants were requested to submit sworn and notarized affidavits
regarding the issue of the basement storage space. The tenants
submitted the required response on May 18, 1988. The owner also
filed a response to the notice on March 10, 1989 wherein it stated
that the tenants were never given permission to store anything in
the basement and any such storage was done without consent.
The Administrator issued the rent reduction order in Docket
No. BG430040B on July 6, 1989. Rent controlled tenants were
granted a $6.00 per month rent reduction. The Administrator did
not order a rent reduction for rent stabilized tenants but did
direct restoration of services.
The order in Docket No. BG420459S was issued on February 5,
1988 and ordered a $6.00 per month rent reduction based on the
inspector's report of six missing apartment screens. The remaining
orders were directives to restore missing screens of five
individual rent stabilized tenants.
On appeal the owner, as represented by counsel, restates the
jurisdictional objection contained in the consolidated response
described above with regard to each of the seven proceedings. The
petitioner also states, with regard to Docket No. BG430040B, that
it was not required to provide the storage space and further states
that the tenants did not complaint about the public area windows
being painted closed. The petition was served on the tenants on
November 22, 1989.
The tenants, also represented by counsel, filed a response on
February 13, 1990 and stated, in relevant part, that the owner's
jurisdictional objection was without merit because the work done to
the building did not meet the "substantial rehabilitation"
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be granted
in part, that the order issued with regard to rent controlled
tenants in Docket No. BG430040B be affirmed, that the order issued
with regard to rent stabilized tenants in Docket Nos. BG430040B
should be remanded to an Administrator for further processing and
that the appeals of the remaining proceedings should be dismissed
The Commissioner initially notes that, pursuant to Section
2529.2 of the Rent Stabilization Code, an administrative appeal of
an order of the Rent Administrator must be filed no later than 35
days after the date of issuance of the order. Pursuant to Section
2208.2 of the Rent and Eviction Regulations for New York City the
time for filing an administrative appeal is within 35 days from the
issuance of the order. This administrative appeal is timely only
with regard to the Docket No. BG430040B. The appeal is dismissed
with regard to the other proceedings.
With regard to rent stabilized tenants who joined in the
filing of Docket No. BG430040B, the Commissioner's review of the
record reveals that the Administrator did not investigate the
owner's jurisdictional objection. Before a proceeding can be
processed on the merits, the Administrator must determine any valid
jurisdictional objections. The owner's defense, as raised in the
consolidated response, was such an objection. Therefore, with
regard to rent stabilized tenants only, the Commissioner remands
this proceeding to the Administrator for determination of the
owner's jurisdictional objection by all appropriate means including
the holding of a hearing if the facts so warrant.
Pursuant to Section 2200.9 of the Rent and Eviction
Regulations for New York City, the DHCR has jurisdiction over the
rent controlled apartments herein. The Commissioner notes that no
order of decontrol was issued for any of the rent controlled
apartments in the building nor did any of the rent controlled
tenants vacate during the alleged "rehabilitation".
The order is affirmed with regard to the rent controlled
tenants. The Commissioner finds that the Administrator based this
determination on the entire record, including the complaint, the
inspector's report and the responses to the Administrator's notice.
The facts contained in the record support a finding that the public
area windows are in need of repair and the storage space has been
removed. The owner may file for rent restoration for rent
controlled tenants when services have been completely restored.
THEREFORE, pursuant to the Rent Stabilization Law and Code and
Rent and Eviction Regulations it is
ORDERED, that this petition be, and the same hereby is,
granted in part, that the proceedings bearing Docket Nos.
BG420459S, BF410587S, BF410582S, BF410586S, BF430580S and BF430588S
be, and the same hereby are, dismissed as untimely, that the
proceeding bearing Docket No. BG430040B, be and the same hereby is,
affirmed with regard to rent controlled tenants and that, with
regard to rent stabilized tenants who joined in the filing of the
proceeding, Docket No. BG430040B is remanded to a Rent
Administrator for further processing consistent with this order and
opinion. The Administrator's order remains in full force and
effect until a new order is issued on remand.
JOSEPH A. D'AGOSTA