DOCKET NO.: EE710104RT
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 APPEAL
APPEAL OF DOCKET NO. EE710104RT
: DRO DOCKET NO. DK710007OR
DAVID G. McCORD - TENANT
: 222 BUTTERCUP ASSOCIATES -
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 15, 1990, the above-named petitioner filed a Petition for
Administrative Review against an order issued on April 10, 1990 by the
Rent Administrator, 50 Clinton Street, Hempstead, New York concerning the
housing accommodations known as 73 Carlton Avenue, Port Washington, New
York, wherein the Administrator ordered a rent restoration.
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 in the administrative appeal.
The owner commenced this proceeding by filing an application for a
restoration of the rent which had been reduced under Docket number
NNH86S448/486B. The owner alleged that it had corrected all defective
conditions whose decrease had been the basis of the order reducing the
rent. The owner stated that the premises were serviced by a
superintendent; garage and storage room were secured with locks; all
gutters had been repaired; and all roofs had been replaced.
Copies of the application were sent to the tenants.
Various tenants responded, protesting any restoration of rent. They
asserted that not all services, in particular, the provision of an on-site
superintendent, had been restored.
In reply, the owner reaffirmed that all services found deficient in the
reduction order had been restored.
On March 28, 1990, an on-site physical inspection without notice to the
owner was conducted by a staff member of the DHCR. The inspection report
showed that the superintendent was on-site at the time of the inspection.
In the order here under review, the Administrator restored the rent to the
level in effect prior to the date of the Order which reduced such rent,
plus applicable renewal lease guidelines, effective December 1, 1989.
In the appeal, the tenant contends: 1) all services have not been
DOCKET NO.: EE710104RT
restored; 2) the owner has submitted no documentary evidence to show that
repairs have been made; 3) the rent restoration order conflicts with the
Commissioner's order (BE730295RO) denying in part the owner's appeal of
the original order; 4) the issue of whether the provision of an on-site
superintendent was a base date service had not been resolved having been
remanded in the just cited Commissioner's order for a determinative
hearing. Since the issue had not been resolved, the petitioner questions
the legitimacy of restoring the rent before all the issues of the original
docket had been resolved.
In reply to the petition, the owner states that all repairs have been
effectuated and that the afore-mentioned hearing has been held, but no
decision had been reached.
The Commissioner is of the opinion that this petition should be denied.
The Tenant Protection Regulations provide that where there has been a
reduction of the legal regulated rent based upon failure to maintain
services, an owner may apply for a restoration of rent based upon the
restoration of such services.
The Regulations do not require that the manner of evidencing restoration
of services be limited to the production of documentation. In the instant
case, the tenants confirmed that repairs for two (roof and gutter) of the
four items for which the rents had been restored had been made but
challenged the owner's application regarding the other two items, i.e., on
the question of an on-site superintendent and on whether a garage door
worked properly. An inspection by the Division found the superintendent
to be on-site at the time of the inspection and that the door was working
properly. Therefore, the rent was ordered restored.
Review of the Division's records reveals that the owner's appeal with
respect to the issue of whether an on-site superintendent is a base-date
service was granted after the hearing was held. In order no. EB710001RP,
it was determined that the provision of a residential superintendent was
not a base date service.
The fact that residential superintendent was found in the July 23, 1990
order number EB710001RP not to have been a base date service is obviously
no reason to reverse the rent restoration order.
Nor does that fact that the Commissioner's order number BE730295RO, issued
January 26, 1990, affirmed the rent reduction for the three services other
than superintendent in any way contradict the rent restoration ordered on
April 10, 1989. The January 26, 1990 order merely affirmed that the
reduction ordered on April 23, 1987 had been proper. The subsequent
restoration of rent based on the restoration of services, in no way
contradicts the validity of the original rent reduction in 1987 or the
affirmance thereof in 1990.
THEREFORE, in accordance with the Emergency Tenant Protection Act and the
Tenant Protection Regulations, it is
DOCKET NO.: EE710104RT
ORDERED, that this petition be, and the same hereby is, denied and the
order of the Rent Administrator be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner