EJ 530225 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
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. EJ 530225-RO
B. ENGLANDER, DRO DOCKET NO. DC 530082-B
PETITIONER
-----------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On August 24, 1990, the above-named petitioner filed a Petition
for Administrative Review against an order issued on August 8,
1990 by the Rent Administrator of the Gertz Plaza, Jamaica,
District Rent Office, concerning the housing accommodations known
as 41 Bennett Avenue, New York, N.Y.
The issue herein is whether there was a decrease in services
warranting reduction of the legal regulated rent.
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 administrative appeal.
On January 27, 1986 the tenants filed a complaint of decrease in
services, alleging among other conditions complained of, the
following: lack of garbage collection, defective intercom,
leaking roof and peeling paint on hall ceiling, basement doors not
locked allowing entrance to outsiders, superintendent not present
on weekends, lack of fencing around yard, rodent infestation,
deteriorated cement in courtyard and entrance, and defective
elevator floor indicator light.
On November 2, 1989, December 5, 1989, December 20, 1989, and
January 6, 1990 physical inspections of the subject housing
accommodation were conducted by the DHCR. The inspector's report
confirmed existence of some of the complained of conditions.
On August 8, 1990, the Rent Administrator issued an order based on
the report of the physical inspection, reducing the legal
regulated rent for the rent-stabilized tenants by the percentage
of the most recent guidelines adjustment for the tenants' leases
which commenced before May 1, 1989, the effective date of the
order, and, by the amou t of $20.00 per month for the rent-
controlled tenants, effective the first rent payment date
following the date of the order, and directing the owner to refund
to the tenants all amounts collected in excess of the reduced
rents since the above mentioned effective dates.
In its petition, the owner contends that the conditions for which
the rent reduction was granted, specifically garbage accumulation,
peeling paint in stairways and cement constituting a trip hazard,
EJ 530225 RO
were not the conditions alleged in the tenants' complaint. Also,
the tenants were already under a rent reduction for unlocked
basement doors and should not have received a second reduction in
the order appealed herein for the same item. Petitioner also
states that the multiple inspections within a close period of time
yield conflicting findings specifically as to risen cement and
elevator indicator lights, and are therefore unreliable, and that
for this reason as well as the fact that the order was issued
seven months after the last inspection and the owner was not
served with copies of the various inspection reports, owner's due
process rights have been violated.
The Commissioner is of the opinion that this petition should be
granted in part.
The Commissioner rejects as wholly without merit the owner's
assertions that the conditions for which the rent reduction was
granted were not the conditions alleged in the tenants' complaint.
The findings of the Division's inspector correlate to the
complained of conditions to such a degree that they can only be
seen as identical from another order of viewing. (E.g. the
complaint was that garbage collection was not being provided and
the finding was termed garbage accumulation.) Petitioner has not
been penalized for conditions which were not alleged and has not
been denied due process in this regard.
The Commissioner likewise rejects petitioner's argument that it
should have been provided with copies of the inspection reports
and that lack of opportunity to address the inspector's findings
or the delay between the last inspection and the issuance of the
order constituted a lack of due process. The owner was clearly on
notice of the conditions complained of when it was provided with
the tenant's complaint. Additionally, the Division's procedures
do not require the Administrator to apprise the owner of the
results of an inspection. As to the conflicts between inspector's
findings, the Commissioner finds that the inspection reports were
prepared by Division employees who are not parties to the
proceeding and not adversaries of the owner, were properly placed
in the record for consideration by the Administrator. On the
basis of the entire evidence of record, the Administrator properly
determined that the conditions constituted a reduction in services
warranting a rent reduction.
The petitioner is correct to the extent that as a rent reduction
existed under Docket No. AA-500083-B based on a finding that the
EJ 530225 RO
basement doors were not secured, the tenants could not collect two
concurrent rent reductions under separate orders issued for the
same item. Consequently, the Administrator's order herein
appealed in modified to the extent that the rent reduction in the
amount of $5.00 applicable to the rent-controlled tenants for
unsecured basement door, is revoked as duplicative of the rent
reduction in the same amount granted under the previous order.
The Commissioner notes that the owner has already filed an
application for restoration of the rents which has been granted by
this Division.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be, and the
same hereby is, granted in part, and, that the order of the Rent
Administrator be modified in accordance herewith.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
|
