FF 630319 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
----------------------------------X S.J.R. 6040
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FF 630319 RO
R AND R MANAGEMENT SERVICES, INC. ADMINISTRATIVE REVIEW
DOCKET NO.: ZDD 610102 B
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On June 21, 1991, the above-named petitioner owner filed a
Petition for Administrative Review against an order issued on May
24, 1991, by the District Rent Administrator, 92-31 Union Hall
Street, Jamaica, New York, concerning housing accommodations
known as Various Apartments of 3539 Decatur Avenue, Bronx, New
York, wherein the District Rent Administrator determined that the
owner had failed to maintain services warranting a building-wide
rent reduction.
The issue in this appeal is whether the District Rent
Administrator's order was warranted.
The applicable section of the law is Section 2523.4 of the Rent
Stabilization Code.
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 administrative appeal.
This proceeding was commenced on April 10, 1989 by the tenants'
filing of a Statement of Complaint of a Decrease in Building-Wide
Services wherein the tenants contended in substance that there
was inadequate heat for many apartments in the building; the
elevator, ventilators, mailboxes, and security camera were all
defective; the building was infested with roaches; garbage was
accumulating in the incinerator room; there were many leaks in
the building and garage area; the plants around the building were
not being watered; and the master antenna was not be maintained.
In response to the tenants' complaint, the owner contended in
substance that the building was provided with exterminating
services once a month; whenever the boiler or elevator broke
down, the maintenance companies were called immediately to
restore services; any complaints about ventilators, mailboxes and
leaks were handled as they came in; no violations had been
received concerning the incinerator; cable television service for
the building was being looked into; and the building was in very
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good condition.
On November 22, 1989 the subject building was inspected wherein
the inspector noted that the heat and hot water were adequate;
the elevator was working properly; the incinerator room was
satisfactory; all vents were working properly; there was no
evidence of vermin infestation in the public areas; all of the
mailboxes were satisfactory; the security camera was working
properly; and there was no evidence of leaks in the garage.
The subject building was inspected again on June 11, 1990 wherein
the inspector noted that the roof antenna was connected, but the
wires were loose; the stair bulkhead was peeling paint and
plaster extensively; the seventh (top) floor ceiling was peeling
paint and plaster; the sixth floor near apartment 605 required
painting; the incinerator rooms were clean; there was no evidence
of vermin in the public areas; there was no sign in the lobby for
regular exterminator visits; the public areas were clean; and the
plants and exterior shrubbery were dried and dying with sections
missing.
On June 20, 1990, the owner was notified of the defective
conditions found at the inspection and was advised to correct
those conditions and the submit proof of compliance.
On July 10, 1990 the owner informed the Division that the plants
and shrubbery were planted by the tenants at their own expense
and were therefore not a service provided by the owner; the roof
antenna wires had been secured; and arrangements had been made to
scrape, plaster and paint the stairway bulkhead and the sixth and
seventh floor ceilings.
On August 16, 1990 another physical inspection of the subject
premises occurred wherein the inspector noted that there was no
evidence of missing or dying shrubbery/plants; there was evidence
of falling plaster in the stairwell bulkhead; there was a water
stain and peeling paint and plaster in the seventh floor ceiling;
the sixth floor did not require painting; and a loose antenna
wire was laid down flat on the roof floor and was not a hazard.
On September 19, 1990 the owner was directed to submit evidence
such as contracts and receipts to substantiate repairs to the
bulkhead and sixth and seventh floor ceilings.
The owner responded on October 9, 1990 and contended in substance
that the necessary work consisted of a very small area which did
not require an outside contractor; and the building
superintendent did the minor scraping, plastering and painting
repairs during the first week of October 1990.
A final inspection of the subject premises occurred on November
8, 1990 wherein the inspector discovered that the plaster on the
entire ceiling area of the bulkhead had fallen with a small area
of ceiling plaster remaining. The size of the affected areas
with fallen ceiling plaster were 6' X 10' and 4' X 7'.
In Docket Number ZDD 610102 B issued May 24, 1991, the District
Rent Administrator determined that the owner had failed to
maintain services, specifically finding that the bulkhead area
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ceiling plaster had collapsed, and accordingly, ordered a
building-wide rent reduction effective June 1, 1989.
In this petition, the owner contends in substance that the
District Rent Administrator's order is incorrect and should be
reversed because the bulkhead area was not listed in the tenants'
initial complaint; the owner was not given the opportunity to
respond to the inspector's finding or to correct the defective
condition; the administrative processing of this case took almost
two years and there is no way that a determination can be made
that the defective condition existed for that length of time; and
the Division has previously held under Docket Number DJ 130338 RO
that a rent reduction may not lie for any condition which exists
in the bulkhead since it is on the roof and the tenants are not
permitted access to the roof except in emergencies.
The tenants of Apartment 604 responded to the owner's petition by
contending that the bulkhead ceiling was repaired in June of
1991, but that it can't be determined yet if the problem has been
corrected. The tenants also contend that most of the defective
conditions listed in their original complaint still exist.
The Commissioner is of the opinion that this petition should be
denied.
Section 2523.4 of the Rent Stabilization Code provides in
pertinent part that a tenant may apply to the Division of Housing
and Community Renewal (DHCR) for a reduction of the legal
regulated rent to the level in effect prior to the most recent
guidelines adjustment, and DHCR shall so reduce the rent for the
period for which it is found that the owner failed to maintain
required services.
A review of the record in the instant case indicates that the
subject premises was inspected on three successive dates (June
11, 1990, August 16, 1990 and November 8, 1990) and that at each
of those inspections the bulkhead area was defective with either
extensive peeling paint and plaster (June 11, 1990) or falling
plaster (August 16, 1990 and November 8, 1990). Furthermore, the
owner was notified on two separate occasions (June 20, 1990 and
September 19, 1990) of the defective bulkhead condition and
responded by stating on July 10, 1990 that arrangements had been
made to scrape, plaster and paint the bulkhead area and by
stating on October 9, 1990 that the repairs were completed in the
first week of October 1990. Based on the foregoing, the
Commissioner finds that the owner had failed to maintain
services, and that the Administrator properly reduced the
tenants' rents.
Contrary to the owner's contention on appeal, the service
decrease listed in the District Rent Administrator's order was
referred to by the tenants in their original complaint. The
finding by the Administrator that the bulkhead area ceiling
plaster had collapsed directly related to the item in the
tenants' complaint regarding several leaks in the building.
With regard to the owner's contention that it was never given the
opportunity to respond to the inspector's finding or to correct
the defective condition, the Commissioner notes that there is no
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requirement that an owner be sent a copy of the inspection report
prior to the issuance of the Administrator's rent reduction
order. In the instant proceeding the record reveals that the
owner was duly notified of the tenants' complaint and of the
defective condition of the bulkhead area and was afforded ample
opportunity to repair the defective condition, but failed to do
so.
Finally, with regard to the owner's contention that a rent
reduction may not lie for any condition which exists in the
bulkhead area pursuant to Docket Number DJ 130338 RO, the
Commissioner notes that the instant case is distinguishable from
DJ 130338 RO in that in DJ 130338 RO the defective condition was
peeling paint and plaster whereas in the instant case almost the
entire bulkhead ceiling had collapsed. Furthermore, in Docket
Number DJ 130338 RO the Commissioner merely stated that a rent
reduction would not be warranted if the only defective condition
was peeling paint and plaster on the bulkhead and in the
basement. The Commissioner did not state that a rent reduction
may not lie for any condition which exists in the bulkhead area.
This order and opinion is issued without prejudice to the owner's
right to file a rent restoration application based on a
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 District Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
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JOSEPH A. D'AGOSTA
Deputy Commissioner
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