EK430096RO; 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 OF DOCKET NOS.:
25 WEST 86TH OPERATING CORP., FG410447RT; FG430504RT;
VARIOUS TENANTS RENT ADMINISTRATOR'S
Petitioner-Tenants EC430139OR; EK430245OR
ORDER AND OPINION DENYING OWNER'S AND TENANTS' PETITIONS FOR
These proceedings concern the housing accommodations known as 21
West 86th Street, New York, New York, various apartments.
The Rent Administrator's order per Docket No. OL002060BH, dated
January 31, 1986, amended March 10, 1986, reduced the rents for
rent controlled and rent stabilized apartments based on the then
owner's failure to maintain a roof garden and directed the owner to
restore the roof garden eliminated in 1985. A subsequent PAR order
per Docket No. ARL08679L, dated August 31, 1988, affirmed the
Administrator's order and specified parenthetically that the ser-
vice required to be maintained was the tenants' right to maintain
roof garden without interference from the owner. There is no
record of a petition for judicial review of the Commissioner's
order by either the owner or the tenants. Consequently, the
Commissioner's determination was final.
On March 30, 1990, the current owner filed an application to
restore rent, asserting that the services had been fully restored
by the replacement in February 1987 of astroturf, plants, a wooden
picnic table and benches, and a metal outdoor table with chairs and
EK430096RO; et al.
An inspection conducted on September 9, 1990, revealed that a
brickwork and rebuilding of a parapet wall was in progress at the
time of inspection, and debris and material around the area. Based
on the results of the inspection, the Administrator determined that
services had not been restored, and on October 17, 1990, issued an
order that denied the owner's rent restoration application.
On November 13, 1990, the owner filed a petition for administrative
review (PAR) of the Administrator's order.
On appeal, the owner reiterates assertions below, to the effect
that the services, i.e., tenants' right to maintain a roof garden
without interference from the owner, had been restored previously,
but that it had been interrupted during the course of roof, parapet
and pointing repairs.
The PAR was served on the tenants on January 12, 1991. Various
tenants responded individually or by their attorneys, asserting
that service of the roof garden had not been restored. In fact,
some tenants, by their attorneys, had responded below that a
restoration had taken place in 1988. However, the owner's appli-
cation was not filed until March 29, 1990. For rent stabilized
accommodations, the effective date of a rent restoration order is
the first month after service of the application on the tenants.
For rent controlled accommodations, the effective date is the first
day of the month following issuance of the order. The inspection
that followed the filing of the owner's application showed that the
services were not being provided at that time. Based on the
record, the Administrator's order was correct, and should be
The owner filed a subsequent rent restoration application on
November 20, 1990, which was processed per Docket No. EK430245OR.
The owner's application consisted of separate individual applica-
tions for each tenant as well as a master application to which the
owner attached a rider and copies of a Stipulation of Settlement,
so ordered by the Court, dated, February 11, 1987, between the then
owner and the tenants' association together with various tenants,
to resolve disputes between the parties not arising in connection
with the proceedings herein.
A provision of the Stipulation specified the owner was " . . . to
replace the roof garden . . . to replace the green astroturf
previously removed, the wooden picnic table with benches, the
metal outdoor table with four chairs, and the two matching benches
. . . to provide lightweight plants to replace the heavier plants
previously removed . . . . "
On June 25, 1991, the Administrator granted the owner's application
and restored the rents, effective February 1, 1991 for rent sta-
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bilized and July 1, 1991 for rent controlled tenants, based on an
inspection held on March 1, 1991 that revealed that the service of
the roof garden, including outdoor carpeting, plants, planters and
outdoor furniture, had been restored.
Various tenants, individually or by their attorneys, filed peti-
tions requesting that the Administrator's order be reversed on
procedural or substantive grounds, or both.
Substantively, the tenants claim that the items replaced by the
owner are not as extensive as the items that were removed.
Various tenants also assert, among other things, that they were
denied due process, in that they were not served the owner's
attachments and exhibits to the application, although requested
twice by the tenants' attorneys.
An examination of the record below shows that the owner submitted
separate applications for each tenant, as well as a master appli-
cation to which the owner attached a rider, and copies of the
Stipulation of Settlement that reflected the parties' agreement to
resolve Court proceedings. The record does show the Administrator
served the individual applications on the tenants, but does not
establish that the tenants or their representative were furnished
the attachments to the master application.
The tenants' statements below and on appeal acknowledge that, in
fact, the owner permits the tenants access to the roof to main-
tain a garden, which is the service the Commissioner specified in
the August 31, 1988 order per Docket No. ARL08679L that the tenants
were entitled to. Since the tenants have acknowledged the owner
allows the tenants access to the roof, the fact that the tenants
were not served all attachments below was harmless error, and is
insufficient to warrant further consideration or a different
result. The question of whether the items replaced by the owner
were as extensive as the items removed is not properly before the
Commissioner. Rather, it is a matter between the parties subject
to their Stipulation of Settlement, which the parties may pursue in
a forum of competent jurisdiction.
As to those tenants that assert, in the proceedings below, in
response to the owner's administrative appeal, or in their own
appeals, that the owner has not afforded them the rent abatements
granted in the Administrator's rent reduction order, the Commis-
sioner notes that these proceedings are not the proper vehicle to
obtain relief for any overcharges. The tenants may file over-
charge complaints with the Administrator, if they have not done so
already, and if the facts so warrant.
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THEREFORE, in accordance with the Rent and Eviction Regulations for
New York City, the City Rent Control Law, and the Rent Stabiliza-
tion Law and Code, it is,
ORDERED, that the owner's petition be, denied, and the Rent Admin-
istrator's order per Docket No. EC430139OR be, affirmed. It is
ORDERED, that the tenants' petitions be, denied, and the Rent
Administrator's order per Docket No. EK430245OR be affirmed.
JOSEPH A. D'AGOSTA