Docket No.: EJ 430069 RO
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 SJR No. 5791
DOCKET NO.: EJ 430069-RO
WEST END ASSOCIATES,
DRO DOCKET NO.: ZCK 430081-B
865 West End Avenue
PETITIONER New York, N.Y. 10025
ORDER AND DETERMINATION DENYING PETITION FOR ADMINISTRATIVE
REVIEW UPON REOPENING AND RECONSIDERATION
This determination is issued pursuant to the Commissioner's
determination dated June 7, 1991, granting the owner's request for
reconsideration and reopening of Administrative Review Order and
Opinion EJ 430069-RO.
The record reveals that the Rent Administrator issued an order on
September 13, 1990 granting the tenants rent reductions based on
findings of an inspection conducted on March 27, 1990 that found
that several public area windows required repairs and maintenance.
Prior to the order, the owner had advised the Administrator that
replacement of all windows had already commenced. In support, the
owner submitted a copy of a contract with the window installation
On appeal, the petitioner acknowledges that the contractor
replaced windows in individual apartments only, going on out of
business before completing the full project. The petitioner
asserts that he then had to locate a new contractor and to come up
with additional funds to pay for the completion of the window
replacement project. That in the interim, in May 1990, subsequent
to the March 1, 1990 inspection, and prior to the September 13,
1990 issuance of the order, all of the cracked windows in the
public areas were replaced, and those windows that "did not open
without difficulty were, eased by the superintendent." In support
the petitioner submitted copies of an invoice and cancelled checks
for replacement of cracked windows in public areas. However, no
evidence was submitted, nor did the petitioner aver that this
material was submitted to the Administrator for consideration.
Nonetheless, the PAR order initially denying the owner's petition
found "that the owner submitted no evidence to substantiate the
contention either while the proceeding was pending before the
Administrator or by attachment to the petition" and affirmed the
Based on irregularity in a vital matter, in that the Commissioner
failed to consider the owner's invoice and cancelled checks for
Docket No.: EJ 430069 RO
replacement of cracked windows in public areas, the PAR proceeding
has been reopened for further processing.
The owner has also commenced a proceeding in the Supreme Court
pursuant to Article 78 of the Civil Practice Law and Rules
appealing the Commissioner's order. The matter remains pending
before the Court.
On reconsideration, the Commissioner finds that the Administrator
properly determined the complaint based on the record presented
below. The entire record shows that the conditions still remained
almost two (2) years after the tenants commenced these proceedings
and more than three months after window replacement commenced.
The Commissioner also concurs with the tenants that they should
not be penalized for the owner's delay in replacing windows and
delay possibly caused by the owner's contractor going out of
The Commissioner also rejects the petitioner's contention that it
was denied due process because it was not put on notice of the
inspection and the inspection results. The owner was fully
informed of the allegation when it was served with the tenants'
complaint. The DHCR is not required to forward copies of the
inspection reports. Matter of Empress Manor Apartments v. DHCR,
147 A.D.2d 642, 538 N.Y.S.2d 49 (2nd Dep't, 1989).
The Commissioner further rejects the petitioners argument that the
defects in the windows on a few landings could not affect all of
the apartments whose rents were reduced in the fifteen story
building. The Commissioner rejects the argument that stair
landings do not service all apartments. All tenants have the same
right to use well-maintained and safe stairwell windows. The
conditions reported constitute a building-wide reduction service.
The Commissioner similarly rejects the petitioner's
characterization of cracked window panes as de minimus. On the
contrary, the conditions constituted a severe hazard to the safety
of tenants and passers-by and required immediate corrective
action. Moreover, the Courts have held that once the Division
determines that a diminution of services has occurred, the
Division must order rent reductions. Hyde Park Gardens v. DHCR,
140 A.D.2d 351, 527 N.Y.S.2d 841 (2d Dep't), aff'd., 73 NY2d 998,
541 N.Y.S.2d 345 (Ct App 1989).
The Commissioner notes rent controlled tenants may be entitled to
rent reductions even if they did not sign the complaint. Rent
Docket No.: EJ 430069 RO
stabilized tenants may apply to the Administrator for a rent
reduction based on failure to maintain required services.
Division records further reveal that the Administrator granted the
owner's application to restore rents pursuant to a rent
restoration order (EI 430000-OR) issued June 27, 1991. In light
thereof, and for reasons set forth above, the petition, on
reconsideration, must be denied.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
and the Rent and Eviction Regulations, it is
ORDERED, that this petition for administrative review be, and the
same hereby is, denied, and that the order of the Rent
Administrator be, and the same hereby is, affirmed.