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.: EE430046RO
301 REALTY CO. RENT
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 19, 1990 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued April 19, 1990. The order concerned various
housing accommodations located at 301 East 38th Street, New York,
N.Y. The Administrator granted in part the owner's rent
restoration application with regard to rent controlled tenants and
denied the application with regard to rent stabilized tenants.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
The owner commenced this proceeding on September 29, 1989 by
filing a rent restoration application wherein it alleged that it
had restored services for which a rent reduction order bearing
Docket No. CJ430139B had been issued. The Commissioner notes that
the Administrator ordered a rent reduction based on the following
findings of decreased services: cracked sidewalks, courtyard and
exterior walls undergoing renovation, bulkhead and skylights in
poor condition, vent stacks leaning, public windows in poor
condition, rusted fire escapes, discontinuation of storage space
and one passenger elevator being used as freight elevator.
The tenants were served with copies of the application and
afforded an opportunity to respond. Various tenants filed responses
to the effect that services had not been restored and that the
order here under review should be affirmed.
The Administrator ordered a physical inspection of the subject
building. The inspection was conducted on March 9, 1990. The
inspector reported the following:
1. Rear courtyard renovation not completed,
2. South/east roof bulkhead ceiling and wall are in
poor condition, peeling paint and plaster
3. Vent stacks leaning,
4. Public windows have rotted metal fames and missing
5. Storage space has been discontinued,
6. West elevator is being used as freight elevator.
The inspector also reported that there was no evidence of cracked
sidewalks, that the exterior walls have been repaired and that
there is no evidence of rusty fire escapes.
The Administrator issued the order here under review on April
19, 1990. With regard to rent controlled tenants, rent restoration
of $10.00 per month was ordered. The owner was given leave to
reapply for the remaining $17.00 per month when services were fully
restored. The application was denied with regard to rent
On appeal the owner, as represented by counsel, states that
the mere renovation of the courtyard, without more is an
insufficient basis for a rent reduction, that the condition
involving the bulkheads and skylights is not related to the
original finding in the rent reduction order and amount to a new
condition, that a leaning vent stack is not a per se decrease in
services, that there is no evidence that the vent stacks are
malfunctioning, that the finding regarding public area windows
lacks specificity about which windows are defective, that storage
space is being provided and was only temporarily removed, and that
there always was one freight elevator and one passenger elevator in
the subject building. The petition was served on the tenants on
August 16, 1990.
One tenant filed a response. However the response was not
relevant to the issues raised in the administrative appeal.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
The owner's petition for administrative review is a
restatement of arguments raised and rejected by the Commissioner in
the administrative appeal filed against the rent reduction order.
In Docket No. DJ430035RO the Commissioner rejected the owner's
defenses on the grounds that the owner did not file a response to
the rent reduction complaint. The scope of review of an
administrative appeal being limited to facts or evidence presented
before the Administrator, the Commissioner ruled that the owner's
defenses would not be considered. The Commissioner notes that the
findings in the rent reduction order concerning the renovations to
the courtyard and exterior walls were revoked. The Commissioner
rejects the owner's attempts to relitigate the issues which were
considered in the prior order.
With regard to the owner's argument that the condition
relating to the south/east bulkhead is a new condition, the
Commissioner notes that the initial complaint in the rent reduction
proceeding was that the bulkheads were in "poor condition". The
inspector in the rent reduction proceeding corroborated this
finding. The inspector in this proceeding also reported that the
south/east bulkhead was in poor condition and proceeded to
elaborate on the peeling paint and plaster condition. In the
opinion of the Commissioner, the Administrator's finding related to
the original finding in the rent reduction order and does not
constitute a "new" condition.
The Commissioner also notes that the physical inspection
conducted in this proceeding was carried out by a DHCR employee who
is neither a party to this proceeding nor an adversary. The
inspector's report is entitled to more probative weight than the
owner's allegations as contained in the petition. The order here
under review is affirmed.
The Commissioner notes that 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,
denied, and that the Rent Administrator's order be, and the same
hereby is, affirmed.
JOSEPH A. D'AGOSTA