FE410212RO
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
----------------------------------x
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FE410212RO
301 REALTY CO. RENT
ADMINISTRATOR'S DOCKET
NO.: CK410100S
PETITIONER
----------------------------------x
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 17, 1991 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued April 16, 1991. The order concerned housing
accommodations known as Apt 3J located at 301 East 38th Street, New
York, N.Y. The Administrator directed restoration of services and
ordered a rent reduction for failure to maintain required services.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The tenant commenced this proceeding on November 4, 1988 by
filing a Statement of Complaint of Decrease in Services and alleged
that the owner was not maintaining certain required services. The
tenant specifically stated, in relevant part, that the owner had
reduced closet space due to the installation of new plumbing, that
there was rodent infestation and that the bathroom tiles were
replaced with ones that do not match in color.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on December
29, 1988 and stated that the building was undergoing massive
renovations to improve the level of services.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on November 15, 1989. The
apartment was reinspected on January 16, 1990. The inspector
reported that there was evidence of infestation in the kitchen and
that the bathroom tiles had been replaced with ones of a different
color than the remaining ones. The inspector also reported that an
area of the closet space had been reduced due to the installation
of piping.
FE410212RO
On February 6, 1991 the Administrator sent the owner a notice
of the fact that various building tenants had filed complaints
about the decrease in closet space. The owner was afforded an
opportunity to file an Application for Modification of Services
before this proceeding was decided. The owner did not respond to
this notice.
The Administrator issued the order here under review on April
16, 1991 and ordered a rent reduction of an amount equal to one
guideline adjustment based on the inspector's report.
On appeal the owner, as represented by counsel, states, in
substance, that it was denied due process because the February 6,
1991 notice giving the owner an opportunity to file an application
for modification of services did not reference the subject
proceeding or tenant and did not advise the owner that a rent
reduction would be ordered if the owner did not respond. The owner
also asserts that it did respond and requested additional
information from the Administrator but the request was not
answered. The owner argues that it should be afforded the
opportunity to file the application for modification before a rent
reduction is ordered. The petition was served on the tenant on May
29, 1991.
The tenant filed a response on June 7, 1991 and stated that
the owner was not denied due process and that the order here under
review was correctly issued and should be affirmed.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
Contrary to the owner's assertion, the Administrator's letter
of February 6, 1991 was sufficient to put the owner on notice of
the purpose of the communication without referring to specific
tenants or docket numbers. The letter referred to complaints by
tenants of the subject building alleging a reduction in closet
space. This was sufficiently specific to inform the owner of the
proceedings involved.
Moreover, it was not necessary for the Administrator to afford
the owner an opportunity to file an application to modify services
before ordering a rent reduction. Section 2522.4 of the Rent
Stabilization Code which permits such applications specifically
provides that no decrease in services is to take place prior to the
approval by the DHCR of the owner's application. However, since
two inspections had already confirmed the reduction in space, a
rent reduction pursuant to Section 2523.4 of the Code was required.
The Commissioner notes that the owner's arguments have been
considered by the Commissioner in proceedings involving three other
apartments in the subject building. In Docket Nos. FE410189RO,
FE420190RO and FE420210RO the Commissioner rejected the owner's
FE410212RO
contention that it had been denied due process. The order here
under review is affirmed.
It is also noted that the owner has filed a petition pursuant
to Article 78 of the Civil Practice Law and Rules wherein it seeks
to annul the Commissioner's determinations in Docket Nos.
FE410189RO, FE420190RO and FE420210RO. The Article 78 proceeding
is currently pending before the Supreme Court. The owner has also
filed an application to modify services which is pending before the
DHCR.
The automatic stay of the retroactive rent abatement that
resulted by the filing of this petition is vacated upon issuance of
this order and opinion.
THEREFORE, pursuant to the Rent Stabilization Law and Code it
is
ORDERED, that this petition be, and the same hereby is,
denied, and that the Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
|
