ADM. REVIEW DOCKET NO.: FA 230013 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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
FA 230013 RO
:
RENT ADMINISTRATOR'S
DOCKET NO.:
EC 230114 OR
MONARCH PROPERTIES
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
IN PART TO THE EXTENT OF GRANTING A PARTIAL RENT RESTORATION
FOR ONE RENT CONTROLLED TENANT
On January 3, 1991, the above-named petitioner-owner filed a
petition for administrative review of an order issued on December
18, 1990, by the Rent Administrator, concerning the housing
accommodation known as 985 Ocean Avenue, Brooklyn, New York,
wherein the Administrator determined the owner's application to
restore rents previously reduced per Docket No. TC 75626 B.
For rent stabilized apartments rent reductions are imposed
for any service decrease and the owner may not collect any
increase in rent or have rents restored to pre-reduction levels,
plus any applicable increases, until the Administrator issues an
order restoring rents, predicated on the restoration of all
services. The owner filed for rent restoration stating that all
of the service decreases cited had been corrected.
Contrary to the owner's claims, inspections conducted on
October 9 and 30, 1990 disclosed that twelve (12) of the forty
five (45+) decreased services that gave rise to the rent
reductions had not been corrected. The inspector reported that
there was no functioning elevator fan switch, that hallway vents
ADM. REVIEW DOCKET NO.: FA 230013 RO
were not functioning, that the bulkhead walls and the stairway
halls for the first, third and fourth floors had peeling paint
and plaster, that the building front light pole had no socket,
that repairs to the chain link fence had not been done, that
there were no window screens throughout the public areas, that
fire escapes were rusted and had peeling paint, that the sidewalk
oil cap was not recessed, that tenants do not have access to the
rear exit door, that the borders of the lantern pole had not been
painted, and that the hot water in one apartment was not
adequate. The remaining conditions were found to have been
corrected and that services were maintained.
On appeal, the owner requests that the Deputy Commissioner
reverse the Administrator's determination alleging that repairs
had been completed, and asserts errors in the Administrator's
determination. A few tenants filed answers disputing each of the
owner's claims.
The Deputy Commissioner notes that the Administrator
rendered his determination based on observations in the reports
filed by the Division's inspectors. As rent agency employees,
the inspectors are not parties to the proceedings, and are not
adversaries to either the owner or the tenant. Their impartial
observations are properly placed in the record for the
Administrator's consideration, and are entitled to and are
afforded great weight.
The Commissioner also notes that this administrative appeal
is strictly limited to a review of whether the services for which
the rent was reduced has been restored, and not to consider new
claims or evidence, such as photographs, attacking the validity
of the rent reduction.
The owner's claim that the elevator fan switch and front
light pole socket are operative and that hallway ventilation is
adequate are belied by the inspector's report. Neither the
owner's claim nor the photographs submitted on appeal establish
otherwise. Additionally, the owner's statement that the fan on
the roof is being repaired suggests that hallway ventilation is
not adequate.
The owner's claim that the chain level fence is not part of
the 985 Ocean Avenue property is raised for the first time on
appeal. The issue was not presented either in the proceedings
below nor in the rent reduction proceedings. Nor did the owner
file a petition for administrative review of the rent reduction
order. In addition, one tenant states the fence in the
photograph is not the fence that required repairs.
The owner asserts that screens are not needed for public
area windows as they are permanently shut and states that access
ADM. REVIEW DOCKET NO.: FA 230013 RO
to the rear exit door can still be obtained if tenants ask the
superintendent. The owner's statements suggest that these
services were not provided on the base date or thereafter, which
is not a relevant inquiry in this restoration proceeding, limited
to a review of whether services found to be required in an
underlying final order have been restored. Moreover, it suggests
an admission by the owner that the conditions cited in the rent
reduction order, i.e., missing screens and locked rear exit door,
have not been corrected. Sealed public area windows and
access to the rear exit door upon request are not adequate
substitutes if the services and equipment were previously
provided. The owner also asserts that the rear exit door is
locked to prevent trespassers access to the boiler room.
However, the owner is cautioned to comply with applicable
provisions of the City Building Code and Housing Maintenance Code
pertaining to exit doors, as well as to public area windows.
The owner claims that the painting repairs were not
completed as the building was managed by a Court appointed
receiver from April 1990 through September 1990. This fact did
not check, postpone or suspend the owner's obligation to restore
services curtailed since 1985. The owner's statement that
painting in the building has not been finished also establishes
that the peeling paint and plaster conditions remain uncorrected.
The owner's statement that the "oil cap" at the sidewalk was
stolen does not address the condition found that the oil cap is
not recessed, and, therefore, still poses a tripping hazard.
Concerning the owner's challenge to the finding of
inadequate hot water in one apartment, while hot water in another
apartment in the same line was reported to be adequate, it is
noted that the inspection report reflected that the inspector was
not allowed to physically inspect the second unit, but was merely
advised by the occupant that the hot water was adequate. One
tenant states that the occupant of that apartment is an employee
of the owner. It is also noted that the condition is limited to
the one apartment cited, and did not have building-wide
application as a basis for denying rent restoration.
The owner's appeal was silent as to the issues of fire
escapes and the front lantern pole in need of painting and
repairs.
The Deputy Commissioner further notes that an order was
issued on January 22, 1992 by Rent Administrator amending and
superseding the underlying rent reduction order per Docket No. TC
75626 B to reflect and correct the status of Apartment 1F only as
ADM. REVIEW DOCKET NO.: FA 230013 RO
rent controlled rather than rent stabilized, and to state a
dollar rent reduction amount of $47.00 plus 7 1/2% MLR effective
the first rent payment date following June 24, 1985.
As a substantial number of the services were found to have
been restored in the proceedings herein under review, the owner
is entitled to partial rent restoration for Apartment 1F in the
amount of $30.50, effective January 1, 1991. Any arrears due the
owner from the tenant as a result of this order may be paid over
the course of the next twelve (12) months.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, the City Rent Control Law and the Rent and Eviction
Regulations, it is
ORDERED, that the owner's petition be, and the same hereby
is, granted, in part, to the extent of granting a partial rent
restoration for one rent controlled apartment as provided above.
Concerning the rent stabilized tenants, the Rent Administrator's
order hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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