STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NY 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: EI230098RO
Seashore Management Co.,
DOCKET NO.: DF230007B
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
REVOKING RENT ADMINISTRATOR'S ORDER AND REOPENING AND
REMANDING PROCEEDINGS TO RENT ADMINISTRATOR
FOR FURTHER CONSIDERATION
The above-named owner filed a timely petition for administrative
review of an order issued on August 14, 1990, concerning the
housing accommodations known as 1177 East 98th Street, Brooklyn,
New York, wherein the Rent Administrator determined the tenants'
complaint of decreased building-wide services.
The Commissioner has reviewed all the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the petition.
The tenants commenced this proceeding by filing a complaint
asserting that the owner had failed to maintain certain services in
the subject premises, in that the tenants were "entitled to a
community room as per 1964 building-wide Certificate of Occupancy
In an answer, the owner denied the allegations set forth in the
complaint, asserting that a community room was never provided, nor
registered. In support, the owner submitted a statement signed by
six tenants alleging that they were original tenants of the subject
premises and that a community room for the tenants was never
The owner's answer was served on the tenants. Three of the
signatories retracted their prior statements made on the owner's
behalf, stating, in fact, that a community room had been available.
Additional tenants submitted statements to the effect that they
also were original tenants and that a community room was provided
when they took occupancy. One tenant stated that he had occupied
the community room area as a residence "until it was found that it
was an illegal apartment...."
Although the DHCR conducted an inspection of the subject premises,
the inspector's report that there was no evidence of a community
room ever being provided was inconclusive as to the question of
whether a community room was provided on the base date or
thereafter. Nevertheless, the Rent Administrator directed
restoration of a community room and further, ordered a reduction of
the stabilization rent.
In this petition for administrative review, the owner, in
substance, reiterates that a community room was never provided nor
registered by any owner. The owner's petition was served on the
After careful consideration, the Commissioner is of the opinion
that the owner's petition should be granted as more fully set forth
Section 2520.6(r) of the Rent Stabilization Code defines required
services as those services which the owner was maintaining or was
required to maintain on the base date or thereafter. The base date
for required building-wide services for the subject premises is May
The fact that the Certificate of Occupancy designated a community
room area, and that several tenants claiming to be original tenants
asserted that a community room area had been eliminated, was not
sufficient to conclude that a community room was provided. The
Certificate of Occupancy does not establish that the community room
was ever created or was ever used for that purpose, the tenants'
statements were conflicting and the DHCR inspection report
confirmed only that no community room was provided at the time of
It is noted that the owner's reliance on the initial 1984 building
services registration and the tenants' reliance on the Certificate
of Occupancy, to determine whether a community room is a required
service, are both misplaced. The fact that the owner did not list
a community room on the registration or that the tenants failed to
object does not act as a bar to subsequent complaints of decreased
services, which can be asserted at any time. The fact that the
space was listed on the Certificate of Occupancy is also not
determinative of the question of whether the community room is a
base date service the owner must provide. It is the actual service
provided on the base date or thereafter, not the registration or
the Certificate of Occupancy, that controls.
However, the tenants are entitled to further investigation of their
allegations. Consequently, the Rent Administrator's order must be
revoked, the legal rent restored and the proceedings reopened and
remanded to the Rent Administrator for further consideration.
The repayment of any rent arrears which may be due the owner from
the tenants as a result of this order is stayed pending the
issuance of a new order by the Rent Administrator upon remand.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that this petition be, and the same hereby is, granted,
and that the Rent Administrator's order be, and the same hereby is,
revoked and the rent restored, and that the proceedings be reopened
and remanded to the Rent Administrator for further consideration in
accordance with the above.
JOSEPH A. D'AGOSTA