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
APPEAL OF ADMINISTRATIVE REVIEW
DOCKET NOS: FH410219-RO
London Terrace Associates/ D.R.O. DOCKET NO:
Joe Grimes, FA410412-S
SUBJECT PREMISES:
410 West 24th Street,
Apt. No. 4F
New York, N.Y.
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW AFTER
REOPENING AND RECONSIDERATION
The above-named owner filed a timely petition for administrative
review of an order issued on July 18, 1991 concerning the housing
accommodation relating to the above-described docket number,
wherein the Administrator ordered a rent reduction based on a
finding that the owner had not provided or maintained certain
services.
On January 31, 1992, the Commissioner issued an Order and Opinion
granting the owner's petition and revoking the Administrator's
order.
Subsequent thereto, the tenant requested reopening and
reconsideration of the Commissioner's order pursuant to Section
2529.9 of the Rent Stabilization Code. The Division agreed to a
reopening of the proceeding for reconsideration of certain
evidence.
The Commissioner has again reviewed all the evidence in the record
and has carefully reconsidered that portion relevant to the issues
raised in the petition.
The tenant commenced this proceeding on January 22, 1991 by filing
a complaint with the Administrator in which she requested a
reduction based on the owner's failure to maintain various
Docket No. FH410219RO - 2 -
services, including a broken intercom and a boxed-off pipes'
installation which resulted in a loss of apartment space.
In its answer filed on March 14, 1991, the owner denied the
allegations as set forth in the tenant's complaint and otherwise
asserted that as to the broken intercom system, the "owner is
employing a substitute service, providing an equivalent degree of
security and convenience at no cost to the tenant"; that the
placement of the piping in the apartment was part of a building
renovation which was "the least intrusive and most practical under
the circumstances"; and that all other defective conditions have
been repaired.
Thereafter, a physical inspection of the subject apartment was
conducted on May 6, 1991 by a DHCR staff member who reported that
the "intercom is broken and does not work"; and that where piping
had been installed and boxed off, the foyer lost 18" by 10" of area
space. The DHCR investigator did not report the installation of a
substitute intercom system as alleged by the owner in its answer.
Based on the inspector's report, the Administrator directed the
restoration of these services and further ordered a reduction of
the stabilized rent.
In this petition, the owner contends that during emergencies,
"(a)partments in the building have been furnished with a speed
dialing system through which tenants can reach the lobby attendant
directly at a toll free number," and "tenant's phones have also
been equipped with a "call-waiting" feature so that they may be
reached by building personnel even when their telephone is
otherwise in use." As to the placement of the plumbing pipes in
the apartment, the owner alleges in substance that the area "loss"
is de mimimis.
A copy of the owner's petition was mailed to the tenant on October
7, 1991. Although it is not clear why the Administrator's file
contains no tenant's answer, a careful review of certified mail
receipts submitted by the tenant along with her request for
reconsideration, taken together with a review of DHCR's certified
mail log, substantiates the tenant's contention that she in fact
submitted a timely answer to the owner's petition, denying that a
substitute intercom service has been installed and that a space
reduction for the pipes is de minimis. The tenant alleges in her
answer to the owner's petition that she is charged for calling the
lobby attendant, there is neither call waiting nor a toll free
number. The tenant further alleges that where the pipes now
occupy a "good part of the foyer" which once held her table and
where she has to eat meals presently at the coffee table in the
living room, a substantial diminution of dwelling space has
resulted.
In reply, the owner reiterates its contentions in the petition,
Docket No. FH410219RO - 3 -
describing in detail its substitute for the intercom and "least
disruptive" pipes installation.
After careful consideration of the entire evidence of record, the
Commissioner is of the opinion that the owner's petition should be
denied and the Administrator's rent reduction order affirmed.
The Administrator's order is correctly based on the physical
inspection of the subject apartment conducted on May 6, 1991 by a
DHCR staff member who reported that the "intercom is broken and
does not work"; and that where piping had been installed and boxed
off, the foyer lost 18" by 10" of area space. The Commissioner
notes that the DHCR investigator did not report the installation of
a substitute system, for the intercom as alleged by the owner in
its answer; and that the tenant's answer to the petition as set
forth above in detail denied that a substitute service had been
installed and that the space reduction of the pipes is de minimis.
On the contrary, the tenant suffered substantial loss of dwelling
space when she had to transform her living room into a dining room.
The Commissioner further notes that other decisions finding the
intercom operative are not dispositive in this case wherein an on-
site inspection confirmed a defective intercom per se or what
turned out to be defective at the time of inspection.
Accordingly, the Commissioner finds that the Administrator properly
based his determination on the entire record, including the results
of the on-site inspection conducted on May 6, 1991; and that
pursuant to Section 2523.4 (a) of the Code, the owner had failed to
maintain services.
This Order and Opinion is issued without prejudice to the owner's
right to file the appropriate application with the Division for
restoration of rent based upon the restoration of services, if the
facts so warrant.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, denied and
that the Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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