Docket Number: EL 630037-RT
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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: EL 630037-RT
:
VARIOUS TENANTS, DRO DOCKET NO.: DH 630068-OR
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
IN PART
On December 3, 1990, the above-named petitioner-tenants filed a
joint Petition for Administrative Review (PAR) against an order
issued on October 1, 1990, by the Rent Administrator at Gertz Plaza,
Jamaica, New York, concerning the housing accommodations known as
3299 Cambridge Avenue, Bronx, New York.
In their petition, the tenants assert that the owner's rent
restoration application was properly denied, based on a finding that
there was no doorman/lobby attendant on duty, but seek to reverse
that part of the order which found that the owner had restored or
was providing other services directed under the rent reduction order
(BCS-000095B).
This issue in the proceeding is whether the Administrator's finding
that services were restored, in part, was correct.
The applicable law is Section 2520.6(r) of the Rent Stabilization
Code.
The Commissioner's order of September 30, 1987 affirmed the
Administrator's rent reduction determination under Docket No. LCS-
000095 that the owner had failed to provide the following services:
Failure to repair top floor public hall ceiling, paint
doors throughout building, scrape and paint garage
ceiling beams, repair garage window, repair ceiling
and floor in the North entrance, repair wallpaper in
the public halls, plaster and paint walls in the public
areas, repair motor driven vents on the roof, paint
utility and incinerator rooms on the 5th, 6th, and 8th
floors, shampoo carpeting throughout building, repair
playground sidewalk, repair fence post, provide fire-
proof boiler room door, repair the peeling pipes in the
laundry room, repair security plate on entrance door,
Docket Number: EL 630037-RT
repair stainless steel column at main entrance door,
repair sidewalk on northwest side of building, provide
shrubs on northeast and northwest sides of building,
provide Doorman/Lobby attendant.
In addition, the Commissioner's order modified the Administrator's
findings to require the owner to provide the following:
that the garage entrance/exit ramp be repaired; that
the tenants be provided access to the roof when same
is requested of management or the superintendent in
order to ascertain whether conditions in need of
maintenance and repair are being addressed; that the
tenants be afforded the right to post notices in the
existing bulletin board or to install their own
bulletin board; that the sidewall and stairway at
the entrance to the playground be repaired where
necessary; that the main entrance vestibule and the
garage be waterproofed where necessary; and that
management notify the tenants of their new address.
The tenants further allege that these services were
provided previously and that those conditions in
need of repair were confirmed upon physical
inspection made by the Division.
On October 8, 1985 the owner commenced the rent restoration
proceedings, which are the subject matter of the instant appeal by
filing an application claiming that the following services had been
restored, or were in the process of being restored:
- Top floor public hall ceiling has been repaired.
- Doors throughout the building have been painted.
- Garage ceiling beams have been scrapped and painted.
- Garage window has been repaired.
- The ceiling and floor in the north entrance has been
repaired.
- The wallpaper in the public halls has been repaired.
- The walls in the public areas have been plastered and
painted.
- The motor driven vents on the roof have been repaired.
- The utility and incinerator rooms on the 5th, 6th, and
8th Floors have been painted.
- The carpeting throughout the building has been
shampooed.
- The playground sidewalk has been repaired.
Docket Number: EL 630037-RT
- The fence post has been repaired.
- A fire proof boiler room door has been installed.
- The pipes in the laundry room have been repaired.
- The security plate on the entrance door has been
repaired.
- The stainless steel column at the main entrance door
has been repaired.
- The sidewalk on the northwest side of the building has
been repaired.
- Shrubs have been provided for the northeast and north-
west sides of the building.
- Doorman/lobby attendant services are being provided
for forty (40) hours per week.
- A uniform has been provided for the doorman.
- The garage entrance/exit ramp has been repaired.
- The tenants have been provided access to the roof.
- The tenants have been afforded the right to post
notices in the bulletin board.
- The sidewall and stairway at the entrance to the
playground has been repaired.
- The main entrance vestibule and garage have been
waterproofed as necessary.
- The tenants have been notified of the management's new
address.
In support, the owner also submitted various letters, invoices, and
cancelled checks from contractors, detailing the various repairs
completed or in the process of completion.
An inspection was conducted on April 26, 1990 by a member of the
Division's inspection staff. The inspector reported that all
services were restored except that the doorman was not present at
the time of inspection.
On May 9, 1990 several tenants, by their representative, submitted
notarized affidavits in answer to and in opposition to the owner's
Docket Number: EL 630037-RT
application to restore rents, averring that not all of the required
services had been restored, or were not being maintained, as
follows:
that numerous doors throughout the building were either
not painted or merely painted on one side; that carpeting
on the public areas was dirty and stained and required
cleaning and shampooing, that the garage was not
waterproofed and that the garage roof leaked if there was
a moderate or heavy rain that the garage ramp was broken
and required repairs, that dead and missing shrubs needed
to be replaced.
The tenants also requested in writing that a re-inspection be
conducted, and in the presence of the tenant's representative. The
tenants also repeated a prior request for a hearing. The tenants
submitted some documentation, notably photographs, to support their
assertions that repairs were not completed.
A second inspection conducted on July 19, 1990 to resolve issues
raised by tenant's objections, revealed, among other items, that the
stairway doors were painted one color on the public hallway side and
that the stairwell side remained the previous color; that it could
not be ascertained if the public hall carpets had been shampooed but
that the stains were found by apartment 5G, 4H, 2A, the laundry room
and by the fourth floor stair "B" door; that the playground had not
been resurfaced, and that the elevated sections and holes were
visible; that the roof doors had signs indicating "authorized
personnel only"; that there was a bulletin board by the laundry room
with "cooperators" information and evidence of a removed unit; that
the vestibule ceiling had areas of peeling paint and plaster; and
that there were minor water stains throughout the garage ceiling.
The remaining items were found to be maintained at the time of
inspection.
The owner's reply of September 6, 1990 addressed the tenants' claims
in detail. In essence, the owner pointed out that there was no
requirement that the color on both sides of the public areas doors
match; that carpeting is shampooed on a regular basis; that the
carpet stains in front of a few apartments and other areas were
subsequently removed; that the owner complied with the
Administrator's rent reduction order to repair the playground,
sidewalk, sidewall and stairway entrance, noting that it was also in
the process of also repairing the garage roof which served as the
playground, even though it was not a basis for the rent reduction;
that the tenants had equal access to the building's bulletin board,
asserting that the owner had never provided two bulletin boards, and
acknowledging that a bulletin board installed by a tenant, without
authorization, had been promptly removed; that the vestibule ceiling
paint and plaster had since been repaired; and that the garage
ceiling had been repaired painted and waterproofed.
Docket Number: EL 630037-RT
In sur-reply, the tenants characterized the owner's April 22, 1990
response as faulty, misleading, and erroneous and inconsistent with
the subsequent July 19, 1990 inspection, and argued that services
were, in fact, not restored.
On October 31, 1990, the Administrator issued orders denying the
owner's application as to restore rents based on a finding that
there was no doorman lobby attendant on duty, but otherwise finding
the following services to be restored or maintained.
1. Garage ceiling beams, windows, entrance and
exit ramp.
2. Playground and northwest sidewalks.
3. Public hallway ceilings, wallpaper and carpeting
throughout.
4. Ceiling and floor of north entrance.
5. Vestibule ceiling, entrance door security plate
and stainless steel column.
6. Shrubs on north east and west side.
7. Fire proof door installed in the boiler room.
8. Stairway doors, utility and incinerator rooms on
the 5th, 6th and 8th floor have been painted.
9. Fence post, roof motor driven vents and laundry
room pipes.
10. Signs are posted for roof doors and by mailboxes
with proper instructions.
11. Bulletin board available to tenants.
12. No defects on steps from West 235th Street to play-
ground.
In their petitions, the tenants reiterate their contentions below
that the enumerated services were in fact, not restored, provided or
maintained, and the other services for which rents were reduced were
not addressed in the rent restoration order.
The owner responded, in essence, that the services were restored,
and are being maintained.
After careful consideration the Commissioner is of the opinion that
the petition should be granted, in part.
Docket Number: EL 630037-RT
With respect to the Administrator's findings below, the Commissioner
notes that in establishing the facts, the Administrator relied on
the several inspections conducted by members of the Division's
inspection staff, and not merely on the parties' representations.
In fact, multiple inspections were conducted to resolve outstanding
issues.
In addition to the inspection, the owner supported its claim of
restoration of services with supporting documentation, in the form
of contracts, invoices and cancelled checks.
Addressing specific items, the Commissioner concurs with the
Administrator's conclusion that there was no requirement to have the
hallway and stairway side of the doors the same color. The record
also reflects that the tenants did not have an unlimited right to
roof access but only to ascertain whether conditions in need of
maintenance and repairs were addressed. Therefore the owner's
restriction that access be authorized, and not be an unrestricted
right, was reasonable. Similarly, the tenants are not entitled to a
separate bulletin board as long as the tenants are offered the
right to post notices in the existing bulletin board. While it is
not clear from the record that the tenants were able to exercise
this right, the owner is cautioned not to refuse access to the
tenants to post notices.
The petitioner's assertion of a denial of due process for failure
to serve notice of the inspections or to have the tenants'
representative present, or to serve copies of the inspections
reports, are rejected. The Division's procedures do not require the
Division to give parties notice of inspections unless their presence
is required by the Division, nor to apprise the parties of the
results. Moreover, the reports prepared by rent agency employees,
not parties to the proceeding, and not adversaries to either the
owner or the tenant, were properly placed in the record for
consideration by the Administrator, and were, entitled to
substantial weight, in excess of either the tenants' or the owner's
self-serving allegations. Moreover it is for the agency to
ascertain, based on inspections and other documentation, whether and
what services are provided or maintained.
With regard to the issues of whether a hearing was essential in
order to reach a determination, or that the tenants were prejudiced
by the alleged lack of opportunity to address all of the owner's
submissions, the Commissioner notes that the Rent Stabilization
Code, does not require the Administrator to hold a hearing. In the
absence of such a mandate, all the due process requires is that
reasonable notice be afforded to the parties to the proceedings and
that they have an opportunity to present their objections. The
record indicates that the petitioner-tenants had ample opportunity
below and at PAR to present their objections. Since the tenants
did, in fact, submit substantial material in their objecting papers
addressing the owner's claims, they cannot successfully claim that
they were denied due process.
Docket Number: EL 630037-RT
As to carpet stains, peeling paint and plaster in the vestibule
areas, and water stains throughout the garage ceiling noted in the
July 19, 1990 inspection report, the Courts have held that once the
Division determines that a diminution in required services has
occurred, the Division must order a rent reduction. Hyde Park
Gardens vs DHCR, 140 AD 2d 351, 527 NYS 2d 841, (AD 2nd Dept), Affd,
73 NY 2d 998, 541 NYS 2nd 345 (Ct Appeals 1989). As rent reduction
are already in effect no further rent reductions are mandated.
However, the Administrator's orders are modified to reflect these
conditions as additional bases for rent reductions, which must be
addressed before rent restorations may be granted, upon proper
application to the Administrator.
THEREFORE, in accordance with the applicable provision of the Rent
Stabilization Law and Code, the Emergency Tenant Protection Act of
1974, Chapter 403 of the Laws of 1983, as amended by Chapter 102,
Laws of 1984, Operational Bulletin 84-1, it is
ORDERED, that this petition be, and the same hereby is, granted,
and the Administrator's order be, and the same hereby, modified to
reflect additional conditions to be corrected, if not already done
so, in order to be eligible for rent restorations, in accordance
with the above.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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