Docket Number: EI-230004-RO
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 SJR No. 5544
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. EI 230004-RO
:
60 PLAZA ASSOCIATES, DISTRICT RENT ADMINISTRATOR'S
DOCKET NO. DI 230086-OR
PETITIONER :
------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 4, 1990, the above-named owner filed a petition for
administrative review of an order issued on July 31, 1990 by a Rent
Administrator concerning Various apartments located at 60 Plaza
Street, Brooklyn, New York, wherein the Rent Administrator denied
the owner's application for a restoration of rent.
Subsequently, and after more than ninety days had elapsed from the
time it filed its petition for administrative review, the owner
deemed its petition 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 for further consideration.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the petition for review.
This proceeding was commenced by the owner's filing applications to
restore rent, on September 15, 1989, from a rent reduction order
under Docket No. KCS-000281-B, which was issued on May 7, 1986.
Various tenants submitted answers opposing the owner's application,
asserting that certain service defects found under Dock t No. KCS-
000281-B were not remedied by the owner.
The Division of Housing and Community Renewal (D.H.C.R.) conducted
an inspection of the subject premises, on June 11, 1990. The
inspection revealed the following defects:
1) Lobby hallway ceiling and walls have peeling
paint and plaster, mildew and waterstains;
2) There is peeling paint and plaster on the
6th floor ceiling of the "A" wing;
3) Entrance canopy has waterstains and entrance
canopy concrete ceiling has peeling plaster;
Docket Number: EI-230004-RO
4) Carpeting on the 2nd and 5th floors of the
"A" wing has been repaired in an unworkmanlike
manner;
5) All windows of both east and west wings require
caulking on all sides of window frames;
6) Courtyard concrete has cracks, and
7) There is peeling paint on fire escapes of A and
B section.
The inspection revealed the following repairs had been completed:
1) There is no evidence of peeling paint and
plaster on bulkhead areas of both A and B wings;
2) There is no evidence of any defects to elevators;
3) Windows do not require any painting on exterior
trim.
On July 31, 1990 the Rent Administrator issued the order under
review herein, denying the landlord's request for a rent
restoration.
The owner's petition asserts that:
1) All defects listed in the inspector's report
are of a constantly recurring condition
requiring periodic maintenance, and alleges
that prior D.H.C.R. cases state that service
defects of a constantly recurring condition
should be no bar to rent restoration;
2) The cracks found in the entrance canopy
were not part of the original complaint;
3) The carpet in the subject building is from
the pre-war period; therefore, when the carpet
tears it is difficult to find material to
replace it, and tears reported in the initial
complaint were sewed or patched with a
carpet similar to the original;
4) The owner repaired all of the items complained
of in the original complaint, and filed two
identical applications for a restoration of
rent on March 31, 1988, and May 1, 1989. The
owner asserts that D.H.C.R. misplaced both
applications, and that the petitioner re-filed
his application for a third time. Also, the
owner alleges that the Rent Administrator did
not inspect the subject premises until June,
1990. Therefore, the owner asserts, some of
the items might require further maintenance
Docket Number: EI-230004-RO
over the course of four years;
5) The owner has no authority to make repairs
in the common areas of the building, because
the subject premises are owned by a cooperative
corporation, and the petitioner no longer has
the legal right to complete repairs;
6) The rent-controlled tenants' rents were
partially restored due to the fact that some
defects were repaired. Therefore, the rent for
the rent-stabilized apartment should be
partially restored also, and
7) The restoration of rent for rent-controlled
tenants should be effective the first rent
payment occurring thirty days after the filing
of the owner's application, and not the
effective date of the order.
The Commissioner is of the opinion that the owner's petition should
be denied.
The cases cited by the owner in the petition are distinguishable
from the facts in this proceeding. Two of the cases cited by the
owner's petition which were consolidated into one order, Docket Nos.
ARL09669-Q and ARL09735-Q, stated that a defect which is of a de
minimus condition is not a bar to a restoration of the rent. In the
above-mentioned cases the owner restored all of the services except
for repairing a broken washbasin stopper, which the Commissioner
held was of a de minimus nature. Therefore, the Commissioner
granted the owner's petition to restore the ren . The two above-
mentioned cases are distinguishable from the facts in this
proceeding, because the defects listed in the inspector's report are
numerous, are not of a minor nature, and if fixed properly should
not constantly recur, especially only four years after the owner
allegedly repaired the defects.
In the other case cited in the owner's petition, Docket No. CB-
130008-RO, the Commissioner granted the owner's petition to restore
rents. In the above-mentioned proceeding the Commissioner
determined that the carpeting in the public areas was old and worn,
but not rippled, and was not hazardous, and was repaired. However,
the order advised the owner to replace the carpet within sixty days
of the issuance of the order or risk a reduction of rent due to a
failure to maintain services in any future services complaint.
Docket Number: EI-230004-RO
The matter decided in Docket No. CB130008-RO is distinguishable from
this proceeding, because in the case at bar the inspector determined
that the carpet was repaired but in an unworkmanlike manner, and was
not merely old and worn.
The Commissioner notes that the owner had an opportunity to raise
the issue of whether cracks in the entrance canopy was mentioned in
the tenant's service reduction complaint (KCS-000281-B), but failed
to do so. Accordingly, the Commissioner finds that the owner's
assertion in this proceeding that cracks were not part of the
original complaint, and should not be a bar to restoring the rent,
is a collateral issue to this proceeding. That issue should have
been raised in the owner's petition dealing with the issue of the
reduction of the rent (KCS-000281-B). The Commissioner notes in any
event that cracks in the entrance canopy was not a service defect
listed in the Administrator's order reducing the rent.
The owner's assertion that the defects mentioned in the June, 1990
inspector's report should not be a bar to restoring the rents,
because the above-mentioned items were all previously repaired in
1986 and 1987, is without merit. The fact that there are defects in
the items mentioned in the inspector's report after allegedly being
repaired is evidence of poor workmanship by the owner in
effectuating the repairs.
As to the owner's assertion that he filed three identical
applications for a restoration of rent because D.H.C.R. misplaced
the two earlier applications, the Commissioner finds that the owner
failed to produce any evidence that the two earlier applications
were ever filed. The Commissioner notes that even if the owner's
assertion is true, the owner fails to explain why it was almost two
years after the rent agency issued the order reducing the rent,
before the owner filed for a rent restoration.
The Commissioner finds that owner has the responsibility under the
rent laws to make repairs in the common areas of the building. As
to the issue of the owner's not being allowed to make repairs by the
majority shareholders of the cooperative corporation, the owner must
resolve this issue with the shareholders in another forum.
The Commissioner may not grant a parti l rent increase for rent-
stabilized tenants for a partial restoration of services under
Section 2523.4(a) of the Rent Stabilization Code. Only when all
services are restored may the stabilization rent be restored.
As to the issue raised by the owner as to the effective date of
restoring partial rents to rent-controlled tenants, the Commissioner
finds that the Administrator correctly applied the effective dates
of reducing and restoring rents, pursuant to the applicable
regulations. Pursuant to Section 2202.2 of the New York City Rent
and Eviction Regulations an order increasing or decreasing a maximum
rent previously established shall not be effective prior to the date
Docket Number: EI-230004-RO
on which the order is issued. In the order reducing the re t (KCS-
000281-B) the Commissioner notes that the effective date of the
reduction of the rent-controlled tenants' rent was the date
following the issuance of the order.
Accordingly, the Commissioner finds that the owner's petition should
be denied.
THEREFORE, in accordance with the City Rent and Rehabilitation Law,
the Rent and Eviction Regulations, and the Rent Stabilization Law
and Code, it is
ORDERED, that the owner's petition be, and the same hereby is,
denied, and the Rent Administrator's order, be, and the same hereby
is, affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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