ED110361RT, et al
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
APPEALS DOCKET NOS.:
BY VARIOUS TENANTS OF PREMISES AT: EE110299RT EE110305RT
55-25 98th Place EE110307RT EE110311RT
99-05 58th Avenue EE110310RT EE110314RT
98-45 57th Avenue EE110324RT EE110316RT
55-30 99th Street EE110320RT
Corona, Queens, New York EE110319RT EE110325RT
DOCKET NOS.: DC 110009 RP
DC 110010 RP
DC 110011 RP
DC 110012 RP
ORDER AND OPINION GRANTING TENANTS' PETITIONS FOR ADMINISTRATIVE
REVIEW TO THE EXTENT OF REOPENING RECONSIDERATION PROCEEDINGS,
AND REMANDING TO THE ADMINISTRATOR FOR FURTHER CONSIDERATION
The above-named petitioner-tenants filed identical individual
petitions for administrative review (PARs) against orders issued
April 11, 1990 by the Rent Administrat r concerning the above-
referenced housing accommodations in Corona, Queens, New York,
a/k/a Sherwood Village.
The tenants' petitions have been consolidated for disposition
as they involve common issues of law and fact.
ED110361RT, et al
The challenged orders, issued subsequent to reopening and
reconsideration, of proceedings under Docket Numbers BH110171B,
BH110172B, BH110173B, and BH110174B, amended the prior rent
reduction orders to restore rents effective January 1, 1990; the
rent reductions had been granted effective December 1, 1987.
The underlying complaints of decreased building-wide services
were filed in August 1987. In extensive correspondence commencing
November 27, 1987, the owner submitted and updated answers
corresponding to each of the buildings. The owner addressed each of
the tenants' complaints asserting, as applicable, that services
were being provided, or that the owner had remedied or commenced
work necessary to remedy the conditions alleged in the complaint,
some of which were being completed pursuant to negotiations with
the tenants. The owner also argued that the tenants were not
entitled to certain services.
On February 10, 1989 the Administrator, after considering the
results of inspections of the subject premises conducted on
December 19, 1988, and other evidence of record, issued the orders
reducing the tenants' rents, based on findings that:
1) The playgrounds required repairs, in that equipment
was broken and missing.
2) The laundry room was locked at the time of
3) The fences around the buildings were rusted.
By a letter dated February 22, 1989, the owner requested the
Administrator to reconsider the February 10, 1989 determinations,
asserting that they were erroneous, as:
a) No threshold determination had been made by the
DHCR that playground facilities are a required
service which owner must provide at any of the
b) The laundry room(s) was properly locked for
security reasons at the time of the inspection
and each tenant has a key.
c) The tenants acknowledged in sign-off documents
submitted to the DHCR that owner fixed the fences
and the only allegations in the tenants'
complaint with respect to the fences was that of
broken fences, not rusted fences. Owner has
submitted proof to show that owner has indeed
repaired and/or replaced the fences.
Upon notice from the Administrator of proceedings to
reconsider the previous orders, the tenants responded, as follows
ED110361RT, et al
As to the playground equipment, the tenants claimed that
extensive playground equipment which was provided on the base date
had been dismantled. The tenants also asserted that no substitute
recreational facilities were provided.
Regarding the laundry room(s), the tenants contended that the
fact that tenants were provided key access did not address the
tenants' complaint that less equipment was provided, and that some
equipment was defective.
The tenants also asserted the owner had removed the fences
surrounding the buildings rather than repainting or replacing them.
Inspections were conducted on January 23, 1990. Based on the
inspections, and other evidence of record, the Administrator
restored the rents to the level in effect prior to the rent
reductions, plus subsequent lawful increases, effective January 1,
1990, based on a finding that new playground equipment had been
installed on or about December 15, 1989.
The Administrator found the laundry room issue to have been
resolved, based on a finding that the tenants had failed to refute
the owner's assertion that all tenants have key access to the
The Administrator also found that the inspections, and
invoices and bills submitted by the owner, confirmed that the
fences had been repaired.
In their petitions, the tenants do not deny that new equipment
has been installed. However, the tenants dispute the
Administrator's determination that there has been a full
restoration of services.
The tenants contend that the playground equipment found on
inspection and cited in the April 11, 1990 orders did not reflect
a full restoration of the equipment provided on the base date.
With respect to the laundry room(s), the tenants reiterate
that some equipment was removed and not replaced.
As for the fence repairs, the tenants assert that the
replacement of "3-foot fencing" by "one-foot chains" does not
represent a full restoration of services.
Copies of the tenants PARs were served on the owner on or
about June 28, 1990. The owner responded on August 20, 1990.
The owner does not concede the threshold issue that playground
ED110361RT, et al
equipment was a required service, but acknowledges that new
playground equipment and "park-like" sitting areas have been
installed for the tenants' use.
The owner acknowledges that base date equipment was dismantled
in 1977 by a previous owner, allegedly after the facilities stopped
being used by the tenants due to changes in the neighborhood, which
had caused the equipment to be dismantled as a result of repeated
vandalism. The owner further asserts that similar equipment as was
provided on the base date has been installed in the same areas, and
disputes the tenants' assertion that the dismantled equipment was
The owner also urges that the petitions be dismissed on the
grounds that the tenants did not articulate their claim of the
removal of the equipment for over ten years, that there is no
evidence that the complaining tenants would make use of the
equipment, and that the tenants raise the issue of original
playground equipment for the first time on appeal.
As to the laundry room equipment, the owner contends that the
capacity of current laundry room equipment exceeds the capacity of
the equipment replaced, notwithstanding that the number of machines
may have diminished, and points out, as below, that the laundry
room equipment is provided by an independent contractor.
As to the issue of fence repairs, the owner argues that the
difference in the height of the fences is merely an aesthetic
difference that does not constitute a decrease in service, and
suggests that it does not constitute a security matter.
While noting that new equipment need not always be identical
in quantity and type to equipment previously provided, upon review,
the Commissioner finds that the record below does not reflect
adequate consideration of whether new playground and laundry room
equipment, and fence modifications, constituted adequate
substitutes for equipment and services previously provided.
The fact that the tenants did not previously complain about
the removal of playground equipment for several years did not
jeopardize their right to raise the issue of a reduction of base
date services, which may be raised at any time. The tenants'
properly raised the issue of the reduction of equipment in their
complaint and in other submissions below, and elaborated upon it in
ED110361RT, et al
their appeals. As a threshold question of fact , the Administrator
should ascertain the playground equipment provided on the base
The owner states that laundry room services are currently
provided by an independent contractor. However the record does not
resolve whether laundry room services were provided under a similar
arrangement on the base date, or whether the Administrator
considered Section 2520.6(r)(3) of the Rent Stabilization Code in
arriving at his determination.
Section 2520.6(r)(3) defines ancillary services as the space
and those required services not contained within the individual
housing accommodations which the owner was providing on the
applicable base date, and any additional space and services
provided or required to be provided thereafter by applicable law.
Section 2520.6(r)(3)(xi) further provides, in pertinent part, that
an ancillary service for which there is or was a separate charge,
shall not be subject to the provisions of this Code where no common
ownership between the operator of such services and that owner
exist or existed on the applicable base date or at any time
subsequent thereto, and such service is or was provided on the
applicable base date and at all times thereafter by an independent
contractor pursuant to a contract or agreement with the owner.
It is not disputed that laundry room services are provided.
However, in light of Section 2520.6(r)(3), the question of whether
the new equipment constituted an adequate substitute should not be
considered, unless it can be established that on the base date or
thereafter there existed common ownership between the operator of
such service and the owner.
The record also reflects that fence repairs were made.
However, the record fails to reveal any consideration of whether
the one-foot chains that replaced the fences constituted an
The matters must therefore be remanded to the Administrator
for further consideration of whether the new equipment and services
installed and provided by the owner are adequate substitutes for
equipment and services previously provided.
On remand, the Administrator shall consider the record to
date, and shall permit the parties to submit additional evidence
and to comment thereon. If necessary for a determination, a
hearing may be scheduled. Consideration shall be limited to
playground, laundry room services and fence repair issues only, and
to no other matters.
ED110361RT, et al
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is,
ORDERED, that the reconsideration proceedings be reopened and
remanded to the Administrator to consider whether new equipment and
services installed and provided by the owner were adequate
substitutes for equipment and services previously provided, in
accordance with the above. The Administrator's determination
restoring rents is not revoked, and shall remain in effect until
the Administrator issue new orders upon remand.
Joseph A. D'Agosta