DOCKET NO. FJ810040RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE :
APPEAL OF ADMINISTRATIVE REVIEW
: DOCKET NO. FJ810040RO
DAVID ASSOCIATES, DISTRICT RENT ADMINISTRATOR'S
: DOCKET NO. FD910012S
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
AND REMANDING PROCEEDING TO THE ADMINISTRATOR
On October 4, 1991, the above-named owner filed a petition for administrative
review of an order issued on October 2, 1991 by a Rent Administrator
concerning the housing accommodation known as Apartment 6-T, 185 Bronx River
Road, Yonkers, New York.
The Commissioner has reviewed all of the evidence in the record and has
carefully considered that portion of the record relevant to the issues raised
by the petition for review.
On April 3, 1991 the subject tenant filed an application for a rent
reduction based on the owner's alleged failure to maintain services, alleging
that since December 3, 1990 the subject building has been without elevator
On April 16, 1991, the Division of Housing and Community Renewal (D.H.C.R.)
mailed a copy of the tenant's complaint to the owner.
On April 23, 1991 the owner interposed an answer to the tenant's complaint
wherein it alleged, among other things, that the building's two elevators
were inoperative as a result of a fire; that service to the buildings's south
elevator was restored on March 21, 1991; that work is proceeding on the other
elevator; and that no rent reduction is warranted as the interruption of
services resulted from a fire, which constituted a major emergency.
On October 2, 1991 the Administrator issued the order under review herein
finding that a diminution of services had occurred and reduced the tenant's
rent from December 1, 1990 through March 31, 1991, and the Administrator
ordered the restoration of the tenant's rent on April 1, 1991.
In its petition the subject owner asserts, among other things, that prior
orders of the rent agency have determined that rent reductions are not
warranted for a temporary reduction in services resulting from an emergency
situation where the owner has made a good faith effort to restore services;
that the reduction of services in this proceeding was as a result of an
emergency situation; that one elevator was restored to service on March 21,
1991, and that the subject tenant filed her complaint in April, 1991; that,
"The tenant's complaint was filed almost one month after services were
DOCKET NO. FJ810040RO
restored, such that no rent reduction is warranted," and that the owner
states that, "if any rent reduction were to have been warranted, the rent
reduction should be limited to the period commencing the first of the month
after the landlord received the transmittal of the tenant's complaint from
the rent agency until the date that services were restored, March 21, 1991."
After careful consideration, the Commissioner is of the opinion that the
owner's petition should be granted in part and that this proceeding should be
remanded to the Administrator.
The Commissioner notes that it is a long established policy followed by the
rent agency and the predecessor agency of the D.H.C.R. in administrating the
various statutes providing for the regulation of housing , that a temporary
service reduction resulting from an emergency situation, where an owner has
made a prompt good faith effort to restore services, will not result in a
The Commissioner further notes that the owner's answer to the tenant's
complaint stated that work was still proceeding on one of the building's
elevators. As the owner admits that work was still proceeding on one of the
building's elevators, the Commissioner finds that at the time the owner was
served with the tenant's complaint building services were not fully restored.
As building services were not fully restored at the time the owner was served
with the tenant's complaint, the Commissioner is of the opinion that the
building's service reduction is not a temporary service reduction as
mentioned in the aforementioned D.H.C.R. policy. The Commissioner finds that
the aforementioned D.H.C.R. policy is not applicable to this proceeding.
The Commissioner notes that the owner was served with a copy of the tenant's
complaint on April 16, 1991. The Commissioner further notes that the order
under review herein ordered the subject apartment's rent reduced from
December 1, 1990 through March 31, 1991.
To ensure due process, it is established policy of the rent agency that rent
reduction orders, pertaining to premises subject to the State Tenant
Protection Regulations are to be effective the first day of the month
following the date when the owner was served with the tenant's complaint.
Accordingly, the Commissioner finds that the Administrator's order
incorrectly reduced the tenant's rent effective from a period prior to the
serving of the tenant's complaint on the owner. The Commissioner further
finds that the Administrator's order should be revoked, and the tenant's
complaint for a rent reduction due to a reduction of services should be
remanded to the Administrator for reconsideration.
On remand the Administrator should allow the owner an opportunity to submit
evidence showing that repairs to the elevators have been completed, and that
there is no service reduction due to lack of elevator service.
If the Administrator should determine that a rent reduction is warranted in
this proceeding, the Commissioner is of the opinion that the order reducing
the tenant's rent should be effective no earlier than May 1, 1991.
If the owner has already complied with the Administrator's order under review
herein and, as a result of the instant determination, there are arrears due
to the owner from the tenant, the tenant may pay off the arrears in three
DOCKET NO. FJ810040RO
equal monthly installments during the next three months. Should the tenant
vacate after the issuance of this Order, all arrears are due immediately.
THEREFORE, in accordance with the Emergency Tenant Protection Act of 1974,
and the State Tenant Protection Regulations, it is
ORDERED, that the owner's petition be, and the same hereby is, granted in
part, and that the Administrator's order be, and the same hereby is, revoked,
and it is
FURTHER ORDERED, that this proceeding be, and the same hereby is, remanded to
the Administrator for the purpose of reconsidering the tenant's application
for a rent reduction based on the owner's alleged failure to maintain
services, in accordance with this order and opinion.
JOSEPH A. D'AGOSTA