AR Docket Nos. FG 410390-RT, et al.
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 NOS.: FG 410390-RT
FG 410445-RT
EH 430081-RO
EH 410087-RO
ZH CONTROL CO. EI 430064-RO
AND EJ 430357-RO
VARIOUS TENANTS,
DRO DOCKET NOS.:
EH 430029-RP
CJ 430141-B
EA 430052-OR
EH 430031-RP
CJ 430142-B
EA 430053-OR
PETITIONERS
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ORDER AND OPINION GRANTING TENANT'S AND OWNERS PETITIONS
FOR ADMINISTRATIVE REVIEW AND REMANDING PROCEEDING TO THE
ADMINISTRATOR FOR FURTHER CONSIDERATION
The above-named petitioner-tenants filed timely Petitions for
Administrative Review (PARs) against various orders issued by
the Rent Administrator at Gertz Plaza, Jamaica, New York,
concerning the housing accommodations known as 83-89 Barrow Street
and 63-69 Morton Street, New York, New York, as more fully set
forth below.
Division records show that on August 24, 1989, the Administrator
issued orders under Docket Nos. CJ-430141-B and CJ-430142-B
granting rent reductions to all tenants as rent stabilized tenants
based on a finding of a broken rear door lock and open door.
On April 9, 1990, the Commissioner issued an order under Docket
Nos. DI-430171-RO/DI-430175-RO/DI-410002-RT/DI-430001-RT) which
granted the tenants' petitions of the Administrator's August 24,
1989 order to provide all rent controlled tenants a monthly $5.00
rent reduction for the defective rear door lock. The Commissioner
also granted an additional $10.00 monthly rent reduction to rent
controlled tenants for the elimination of the Barrow Street
building laundry facilities. The Commissioner remanded the
proceedings to the Administrator to ascertain if the tenants in
the Morton Street building had access to storage space. The
Commissioner rejected the tenants' contention that the Morton
Street laundry room was not maintained, that the tenants be
AR Docket Nos. FG 410390-RT, et al.
allowed to use the roof for washlines and that porter services
were inadequate. The Commissioner denied the owner's petitions in
their entirety.
Subsequent thereto the owner filed a petition in the Supreme Court
pursuant to Article 78 of the Civil Practice Law & Rules
challenging the finding that the owner had failed to provide a
laundry room for certain rent controlled tenants and that the rear
door(s) required lock(s).
On August 1, 1990 the Administrator amended the original rent
reduction orders (CJ-430141-B and CJ-430142-B) to correct the
status of the controlled tenants, to state the monetary amount of
the rent reduction for the defective rear door lock(s), and to
grant a rent reduction to controlled tenants for the elimination
of the Barrow Street laundry room, and established the effective
date. However, the orders were duplicative of the Commissioner's
April 9, 1990 determination. The owner filed administrative
appeals on August 6, 1990, assigned PAR Docket Nos. EH-430081-RO
and EH-430087-RO challenging the Administrator's amended orders.
In additional proceedings, the Administrator on September 17,
1990, denied the owner's applications under Docket Nos. EA-430052
OR and EA-430053-OR to restore rents previously reduced. On April
23, 1991 the Commissioner denied the owner's administrative
appeals under Docket Nos. EI-430064-RO and EJ-430357-RO and
affirmed the Administrator's determinations denying rent
restoration. Subsequently on May 21, 1991 the Commissioner
granted the owner's request to reopen and reconsider the owner's
administrative appeals.
By an order dated October 15, 1990, ZH Control v. DHCR, Index No.
9571/90, Sup. Ct. (Pecora, J.), the Court directed that the
Division reconsider the question as to which rear door(s) required
the lock(s). The Court also concluded that questions, with
respect to the elimination of the Barrow Street laundry room and
denial of access o the roof, required clarification and re-
evaluation as the agency's determination may have been rendered
without a complete record. As previously noted, the issue of
storage space for Morton Street tenants, as well as the Barrow
Street laundry room, had previously been addressed and remanded to
the Administrator by the Commissioner.
On remand, from the Court and by the Commissioner and after
service of notice upon the parties, the Administrator, under
Docket Nos. ED-430029-RP and ED-430031-RP requested an inspection
which was conducted on May 29, 1991. The inspector reported that
he found no defect in the door locks of doors leading from the
rear of each building into the rear courtyard, and explained that
tenants must use a key to gain access from the courtyard to the
building as the doors were self-closing when operating properly.
AR Docket Nos. FG 410390-RT, et al.
The inspector also reported that a gate on Hudson Street to the
middle courtyard was locked at the time of inspection, and not
open or accessible to non-residents. The inspector observed that
laundry rooms were provided in both the Barrow Street and Morton
Street buildings. The inspection revealed evidence of storage
room in the Barrow Street basement and indicated that all tenants
had access to the storage area on request through the
superintendent.
Based on the inspection, on June 19, 1991 the Administrator issued
orders revoking the rent reduction on the grounds that laundry
rooms were provided and that means of entry to the premises were
secure at the time of inspection, notwithstanding that a rear yard
building door had evidence of loose or missing screw. The issue
of the tenants' access to roof clothes lines was deemed not to be
an essential service as the laundry drying facilities were being
provided; it was noted that the existence of roof clothesline may
constitute a Building Code violation. The Administrator also
noted that storage facilities were provided, albeit sealed and
available to tenants' upon request through the superintendent.
Two tenants filed timely Petitions for Administrative Review. The
tenants acknowledge that services were restored, but argue, in
essence, that it was improper to revoke the rent reductions solely
on the basis of the last inspection held on May 21, 1991, when, in
fact, the tenants had been denied security, laundry room and other
services for almost two years after the tenants' complaint. One
tenant also alleged lack of due process, asserting that she was
not served a copy of the owner's March 31, 1989 answer with the
October 22, 1990 notice to reconsider pursuant to remand.
The owner was served with copies of the petitions, but there is no
indication in file that the owner responded.
After careful consideration, the Commissioner is of the opinion
that the proceeding should be remanded to the Commissioner for
further consideration as more fully set forth below.
The Commissioner concurs that it was improper to revoke rent
reductions based solely on an inspection conducted some years
after the tenants' complaints and after the rent reduction orders
issued. Accordingly, the proceedings should be remanded to
ascertain the appropriate periods the tenants were entitled to
rent reductions based on the defective door locks and the
temporary elimination of one laundry room. In order to ascertain
the correct period(s) the tenants were entitled to rent
reductions, the Administrator shall also clarify and re-evaluate
issues, as directed by the Court. The Administrator shall
consider the record to date, as well as any evidence submitted
hereafter, in accordance with this opinion, as more fully set
forth below.
AR Docket Nos. FG 410390-RT, et al.
Regarding rent controlled tenants, Section 2202.16 of the Rent and
Eviction Regulations for New York City provides, in pertinent
part, that if the landlord fails to maintain essential services,
the Administrator may order a decrease in the maximum rent in an
amount which the Administrator in his discretion may determine.
Further, Section 2200.3(b) of the Rent and Eviction Regulations
for New York City defines essential services as "those essential
services which the landlord furnished, or which he was obliged to
furnish, on April 30, 1962, and which were included in the maximum
rent for the housing accommodation on that date. These may
include, but are not limited to, the following: ... laundry
facilities and privileges." Section 2201.2 of the Rent and
Eviction Regulations for New York City also provides, in pertinent
part, that every landlord shall furnish with housing
accommodations the same essential services as were furnished, or
required to be furnished, on April 30, 1962, or any subsequent
date determining the maximum rent.
With regard to the rent stabilized tenants, Section 2523.4 of the
Rent Stabilization Code provides in pertinent part that a tenant
may apply to the DHCR for a reduction of the legal regulated rent
to the level in effect prior to the most recent guidelines
adjustment, and the DHCR shall so reduce the rent for the period
for which it is found that the owner failed to maintain required
services. Further, Section 2520.6(r) defines required services as
that space and those services which the owner was maintaining or
was required to maintain on the applicable base date (in this case
June 30, 1974) and any additional space or services provided or
required to be provided thereafter.
Section 2520.6(r)(3) defines ancillary service as that space and
those required services not contained within the individual
housing accommodation which the owner was providing on the
applicable base date and any additional space and services
provided or required to be provided thereafter by applicable law.
Section 2520.6(r)(3)(xi) provides in pertinent part that an
ancillary service for which there is or was a separate charge,
shall not be subject to the provisions of this Code where no
common ownership between the operator of such service and the
owner exists or existed on the applicable base date (here June 30,
1974) or at any time subsequent thereto, and such service is or
was provided on the applicable base date and at all times
thereafter by an independent contractor pursuant to a contract or
agreement with the owner.
For rent controlled tenants specific monetary reductions are
imposed for each service reduction, and the Administrator may
grant partial rent restorations until all services are restored.
For rent stabilized tenants, a rent reduction is imposed for any
service decrease and no further rent reduction may be imposed for
AR Docket Nos. FG 410390-RT, et al.
any additional service decrease. The owner may not demand or
collect any rent increase until the Administrator issues an order
restoring the rent based on restoration of all services.
The Commissioner remanded the question of which rear doors were at
issue and whether the doors required locks. The last inspection
revealed that the two buildings each contain doors to the rear of
each building to the inner rear courtyard. The locks have been
replaced, repaired or installed by the owner; the owner has also
admitted that the doors were previously kept open.
The building also contains a locked, metal gate from the street to
the middle courtyard connecting to the buildings' rear yards. In
the record below the owner contended that the gate was locked at
all times, while the tenants alleged that the gate was frequently
left open unattended to allow storekeepers access to supplies
maintained in the buildings' basements, compromising the security
of the buildings. The last inspection confirmed that access to
the buildings through the rear courtyard doors can now only be
obtained by keys, minimizing the threat to building security.
On remand the Administrator shall ascertain if the building rear
courtyard doors were properly secured in accordance with Building
Code and Housing Maintenance Code requirements on the applicable
base date or thereafter, and whether the equipment was maintained,
and complied with the Housing Maintenance Code and the Building
Code requirements, when the tenants filed their complaint. The
Administrator and the parties are referred to Section 27-371 of
the Building Code and Section 27-2044 of the Housing Maintenance
Code for the applicable standards. The Administrator shall also
consider whether the owner's past practices with regard to the
metal gate compromised building security or if, in fact, provided
the building adequate security.
The Commissioner is of the opinion that pursuant to Section
2200.3(b) of the Rent and Eviction Regulations, which lists
"laundry facilities and privileges" as essential services, the
Barrow Street laundry room was an essential service. With regard
to whether this service was furnished or required to be furnished
on April 30, 1962, it is noted that the owner has conceded in the
March 31, 1989 answer to the tenants' complaints that the tenants
were not authorized to use the roof for their clotheslines since
prior to 1972, when space in the basement was leased to the coin
operated laundry machine company. Accordingly, the provision of
the two laundry rooms must be considered an essential service
which the owner was required to furnish pursuant to the Rent
Control Law and Regulations. It is further noted that the Rent
Control Law and Regulations make no distinction between essential
services which are provided within an apartment or which are
ancillary (provided outside the apartment). Further an owner is
obligated to see that all essential services are maintained;
including those which are supplied by independent contractors.
AR Docket Nos. FG 410390-RT, et al.
Therefore, all rent controlled tenants of the subject premises
were entitled to a rent decrease due to the temporary elimination
of the Barrow Street laundry room, since the tenants of both
buildings were compelled to use only one laundry room. Such rent
decrease would remain in effect until the owner applied to the
Administrator for a rent restoration based on the restoration of
the Barrow Street laundry room and the Administrator issued a rent
restoration order. The Commissioner is also of the opinion that
for the rent controlled tenants, a rent decrease of $10.00 per
month is warranted for such service decrease.
As to the rent stabilized tenants, it is noted that the owner in
its March 31, 1989 answer stated that the laundry room service was
always supplied by an independent contractor and the owner was not
responsible for its maintenance. However, the owner did not
submit sufficient evidence to establish that the laundry room
service was supplied by an independent contractor since June 30,
1974 (the base date). Also, a copy of the owner's answer does
not appear to have been served on the tenants. Accordingly, this
proceeding must be remanded for the purpose of serving the owner's
March 31, 1989 answer on the tenants, affording the tenants an
opportunity to respond, allowing the owner to prove that the
laundry room service was supplied by an independent contractor
since June 30, 1974 or the date the laundry room was first
supplied, and giving the tenants a copy of any additional evidence
submitted by the owner and a chance to respond.
If it is found that the Barrow Street laundry room service was not
always provided by an independent contractor since June 30, 1974
or the date the laundry room was first supplied, then the
elimination of the Barrow Street laundry room should be added as a
service decrease for both the Morton Street and Barrow Street rent
stabilized tenants. If it is found that the Barrow Street laundry
room service was always provided by an independent contractor
since June 30, 1974 or the date the laundry room was first
supplied, then the Rent Administrator's order should be modified
to provide that the owner is not obligated to provide or maintain
the laundry room service for the rent stabilized tenants, but that
the owner is obligated to keep the space provided for the laundry
room because such space is a required service (since it was
provided by the owner from the base date or when the laundry
service was first provided). The owner remains obligated to
provide and maintain the two laundry room facilities for the rent
controlled tenants.
The owner's suggestion that the rent-controlled tenants gave up
their right to use roof clotheslines in 1972 in exchange for the
provision of two laundry rooms by the owner is compelling but not
dispositive of the question presented. On remand, the
Administrator shall consider additional evidence to ascertain if,
in fact, such use of the roof violated the Building or Housing
Maintenance Code, and, if not, whether this service was improperly
AR Docket Nos. FG 410390-RT, et al.
eliminated for both rent-controlled and the then rent-stabilized
tenants. No evidence was presented to support the tenants' bare
allegation that the tenants were allowed to use the roof for
sunbathing purposes. Accordingly the owner is not obligated to
permit the tenants to use the roof for such purpose.
The record to date establishes that all tenants are provided
storage space. On remand, the Administrator shall ascertain the
period, if any, Morton Street tenants temporarily were deprived of
storage facilities.
If necessary for a proper determination of the issues presented a
hearing may be scheduled.
By an order dated May 21, 1991, granted the owner's request for
reopening and reconsideration of Administrative Review Orders
issued under Docket Nos. EJ-430357-RO and EI-430064-RO. The
Commissioner's order had affirmed the Rent Administrator's orders
under Docket Nos. EA-430052-OR and EA-430053-OR which had denied
the owner's application to restore rents, on the grounds that an
on-site inspection conducted on July 13, 1990, confirmed that a
broken rear door lock had not been corrected. In light of the
instant proceedings which concern, among other items, the
effective dates the owner was entitled to rent restoration, the
Administrator's orders denying the owner's rent restoration
applications should be revoked and the proceedings remanded to the
Administrator for consolidation and processing with the
reconsideration of the service reduction complaints.
Petitions for Administrative Review Docket Nos. EH-430081-RO and
EH-430087-RO appealing the Administrator's order issued on July 6,
1990, amending prior orders under the same docket numbers issued
on August 24, 1989 to correct the status of each rent controlled
tenant, and to establish monetary amount for the rent reduction
are granted, to the extent of revoking the Administrator's July 6,
1990 determination. The proceedings are terminated as duplicative
and moot by reason of the Commissioner's April 9, 1990 order to
the same effect.
The Commissioner notes that the petitions und r Docket Nos. FG-
410390-RT and FG-410445-RT are granted to the tenants in their
individual capacity. However, the Administrator may, if
appropriate, consider if the results, on reconsideration, accrue
to the benefit of the tenants building-wide.
THEREFORE, in accordance with the provisions of Chapter 403, Laws
of 1983, as amended by Chapter 102, Laws of 1984, it is
ORDERED, that the owner's and the tenants Petitions for
Administrative Review be, and the same hereby are, granted, and
that the Administrator's orders denying the owner's applications
AR Docket Nos. FG 410390-RT, et al.
to restore rent, and the Administrator's orders annulling the rent
reductions based on the latest inspection, be revoked, and that
the proceedings be opened and remanded to the Administrator to
ascertain the period(s) the tenants were entitled to rent
reductions, if any, based on the deprivation of essential or
required services, following the tenants' initial complaints. On
remand, the Administrator shall also ascertain if or when
services were properly restored, and restore rents, accordingly.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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