Docket No. EK 530038-R
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 S.J.R. NO. 5760
106 PINEHURST AVENUE CO., DOCKET NO. EK 530038-R
DISTRICT RENT ADMINISTRATOR'S
DOCKET NO. DJ 530057-B
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On November 13, 1990, the above-named owner filed a petition for
administrative review of an order issued on October 9, 1990 by a
District Rent Administrator concerning various housing
accommodations in the premises known as 106 Pinehurst Avenue, New
York, New York wherein rent was reduced to a diminution of
Subsequently, and after more than ninety days had elapsed from the
time it filed its petition for administrative review, the owner
deemed its petition as having been denied, and sought judicial
review in the Supreme Court of the State of New York pursuant to
Article 78 of the Civil Practice Law and Rules.
By court order dated September 6, 1991, the matter was remitted to
the rent agency for determination.
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 petition for review.
On October 18, 1989, various tenants filed a building-wide
application for a rent reduction based on the owner's failure to
maintain certain services, to wit: inadequate elevator services,
dirty elevators, defective intercoms, a front door that did not
lock securely, dirt in garbage collection areas, dirt in courtyard
and garden areas, vermin infestation, the lobby had broken windows
and radiator covers, lobby furnishings were reduced, the stairwell
windows were broken, rusted fire escapes, a flood in the laundry
room, inadequate hot water, a poorly patched sidewalk, the
building was not painted, and the building had no master antenna.
On January 3, 1990, the Division of Housing and Community Renewal
(DHCR) received the owner's answer. The owner responded in a
point-by-point rebuttal of the tenants' complaint. In substance,
the answer stated that no diminution of services existed. It was
contended that all items in need of repairs had been repaired.
Further, the answer alleged that all intermittent problems such as
broken windows and cleanliness were routinely attended to in the
ordinary course of business in a prompt manner. Also, it was
contended that all services such as vermin extermination,
Docket No. EK 530038-R
elevator, and laundry room facilities, were well-maintained as the
result of outside maintenance contracts and leases.
On August 21, 1990, a physical inspection of the subject premises
was carried out by the DHCR. The inspector, in his report,
indicated seven instances of diminished services, to wit: the
elevators in all three wings had levelling deficiency of
approximately one and one-half (1-1/2) inches, the elevators were
dirty, the intercoms were defective, holes on radiator cover
screens in the lobby, a missing window pane in a lobby window, a
poorly patched sidewalk with cracked and broken areas, and garbage
scattered about the courtyard. The inspection report indicated
no evidence to support the twelve other alleged service
diminutions enumerated in the tenants' original complaint.
On October 9, 1990, the Administrator issued the order under
review, finding that a diminution of services had occurred and
reducing the rent to the level in effect prior to the last rent
guideline increase which commenced before the effective date of
the order for the rent-stabilized signators of the original
complaint. In addition the maximum legal rent was reduced by
$32.00 per month effective on the first rent payment day following
issuance date of the order for all-rent controlled residents of
the subject premises. While listing all seven service diminutions
in the order, the Administrator specifically numbered only six of
the seven items.
In its petition for administrative review, the owner requests that
the Administrator's order be reversed. First, the owner alleges
that the DHCR must provide the owner with the results of the
inspector's report and be given twenty-one days to respond.
Further, it is alleged that the agency failed to comply with its
policy and that upon receipt of the order the owner corrected the
conditions thereby demonstrating that it would have done so had
DHCR followed its own policy. Second, the owner addresses each of
the six numbered service diminutions listed by the Administrator
in the order. The owner asserts that the elevators levelled as
well as they could under the conditions and technology available
at the time of their installation, the elevators were cleaned on a
daily basis, defective intercoms were immediately repaired when
the owner was notified, only one lobby window pane out of many
panes was broken and they are replaced as quickly as possible,
the holes in the radiator screens were de minimis and the original
complaint failed to give the owner sufficient notice of the fact
that both the radiator screens and covers were the item complained
of in the original complaints, and the poorly patched sidewalk
Docket No. EK 530038-R
would have been repatched had the owner been notified that the
inspector reported poor workmanship.
Numerous tenants filed answers to the petition for review
requesting affirmation of the Administrator's order. In
substance, they stated that these particular service deficiencies
were merely part of a long pattern of unresponsiveness on the part
of the owner in attending to a wide variety of service
deficiencies. In addition, the tenants claimed, in substance,
that the Administrator's order was insufficiently thorough and did
not support enough of the originally enumerated complaints.
Finally, the tenants also raised some new service issues in their
answers as well.
Several further supplemental communications were received by DHCR
from the parties which, in effect, reiterated the earlier
assertions. Included was an owner's submission of an affidavit
from the superintendent asserting that all routine maintenance was
attended to promptly and well.
On November 19, 1991, the Administrator issued an amended order
which merely put a number 7 before the service defect of garbage
being scattered in the courtyard and attached a dollar amount to
that deficiency for the rent-controlled tenants in the subject
premises. No other changes were made to the order. The substance
of the order and the total dollar amounts of the rent reductions
remained the same.
In an earlier submission by the owner, it had asserted that the
courtyard area was always cleaned and well-maintained in the
ordinary course of business.
After careful consideration, the Commissioner is of the opinion
that this petition should be denied.
The owner's allegation that DHCR policy is to notify the owner of
the inspector's finding and allow the owner twenty-one days to
respond is without merit. No such policy existed at the time the
Administrator's order was issued and no formal policy to that
effect currently exists. In addition, there is no due process
requirement that the parties be notified of the inspector's
findings before the Administrator's order is issued.
The Commissioner finds that the Administrator correctly relied on
the inspector's report and correctly reduced the rents. The
Commissioner will address each of the seven enumerated service
First, the elevator levelling in the subject premises was reported
to be one and one-half (1-1/2) inches. This levelling inadequacy
creates a serious tripping hazard. The alleged inability of the
equipment to properly level is not a defense to a rent reduction.
Docket No. EK 530038-R
Second, the owner alleges that it was never notified by the
tenants of any intercom defects and had it been so notified it
would have repaired the individual intercoms. This allegation is
not sufficient to reverse the Administrator's finding. The
tenants' original complaint served on the owner gave the owner
notice that the intercom was defective. Further, the inspector's
report indicated that it was determined that the intercom was
defective by inspecting the building's intercoms from a position
in the lobby. The inspector did not enter individual apartments
to inspect intercoms, and he attempted communication with several
different apartments from the lobby intercoms in all three wings
of the subject premises. The inspector, in his report, indicated
inadequacies in all three wings. Certainly, the owner knew or
should have known of these systemic intercom deficiencies.
Third, the owner alleges that had it been notified of the
inspector's report of poor workmanship in repatching the sidewalk
it would have been corrected. This allegation, as discussed
above, is without merit since there is no policy of notification
before the Administrator's order is issued. Again, the tenants'
original complaint gave additional notice to the owner that the
sidewalk was defective.
Fourth, the owner alleges that the tenant's original complaint
notified the owner only that the lobby radiator "covers" were in
question and that the owner had no notice that the radiator
"screens" would be inspected as well. The Commissioner is of the
opinion that the tenants' complaint gave the owner sufficient
notice that the entire outer protective area of the lobby radiator
Items five through seven, to wit: garbage in the courtyard, a
dirty elevator and a missing lobby window pane all are items of
required services and maintenance. In these instances the
Commissioner finds that the Administrator correctly relied on the
entire record. This record includes multiple assertions by the
tenants that these required services are regularly defective, and
the results of the on-site physical inspection conducted on
August 21, 1990. Therefore, the Administrator correctly
determined that the owner had failed to maintain these services.
Accordingly, the Commissioner finds that there are no grounds for
the reversal or modification of the Administrator's amended order
issued on November 19, 1991.
THEREFORE, in accordance with the Rent Control Law, the Rent and
Eviction Regulations, and the Rent Stabilization Law and Code, it
ORDERED, that this petition be, and the same hereby is, denied,
Docket No. EK 530038-R
and that the Administrator's order be, and the same hereby is,