ADM. REVIEW DOCKET NO.: FG 430116 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
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IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
FG 430116 RO
:
DRO ORDER NO.:
DI-430063-B
ASHOUR SHAYANI
d/b/a ASH MANAGEMENT CO.
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
IN PART AND MODIFYING ADMINISTRATOR'S ORDER
On July 8, 1991 the above-named petitioner owner filed a
Petition for Administrative Review (PAR) against an order issued
on June 7, 1991, by the Rent Administrator at Gertz Plaza,
Jamaica, New York, concerning the housing accommodations known as
10 East 16th Street, New York, New York, wherein the
Administrator determined the tenants' complaint of a reduction of
building-wide services.
The tenants commenced these proceedings on September 22,
1989 by filing a joint complaint alleging various individual
apartment and building-wide services reductions. The tenants
supplemented their application on February 6, 1990 with
additional complaints. On May 28, 1990, the Administrator was
advised that title to the property had been transferred to a new
owner.
An inspection of the premises conducted on November 26, 1990
confirmed several of the tenants' complaints. By a letter dated
December 4, 1990, the Administrator requested the owner to
comment on, and to correct, the conditions, confirmed by
inspection, that
1. The elevator was dirty and that oil was
spilled on the floor causing a hazardous
condition.
2. The elevator closing gate did not self-
close properly, causing elevator not to
respond to calls from other floors.
3. There was evidence of damaged tar roof
paper and water accumulation in the east
ADM. REVIEW DOCKET NO.: FG 430116 RO
south area of the roof.
4. The large exhaust fan was found operating,
creating extreme vibration and noise.
5. The following apartment doors (exterior) were
peeling paint: 17,15, 16, 2 and 1, Also
ceiling and wall above Apt. # 14, had
peeling paint and plaster.
6. All elevator doors and south door near
elevator main entrance were peeling
paint.
7. Peeling paint and plaster at lobby
vestibule door wall, North/West area,
and in the west wall near fire alarm
box lobby area.
8. Metal supports underneath the bay windows
in the front of the building were
separated, split, hanging down and corroded.
The owner responded on December 29, 1990 that all problems
had been corrected by the owner's staff and by owner's
contractors, and submitted supporting documentation. The owner
indicated that items 1, 5, 6 and 7 had been corrected by
building staff, and submitted receipts for supplies. The owner
provided a letter from the elevator contractor stating that a
self closing device would be installed (item 2). Also enclosed
was an invoice from the roofing contractor for repairs to roof
and bay windows (items 3 and 8). The owner stated that the noise
and vibration condition (item 5) was corrected by the commercial
tenant and was in compliance with all City Buildings Department
requirements.
A follow-up inspection conducted on May 1, 1991 found
damaged tar paper and water accumulation on the roof area, and
metal support of the bay windows that were separated, split and
corroded. Based on the conditions found on the May 1, 1991
inspection, the Administrator issued orders reducing rents for
both rent controlled and rent stabilized tenants.
On appeal the owner argues, in essence, that the record
failed to show that any tenants were suffering a continued
impairment of services because of the conditions noted.
Various tenants, responded disputing the owner's contention.
In pertinent part, the tenants reiterate assertions below of a
lack of general building-wide maintenance, question the
structural integrity of the owner's repairs and of the building
generally, and assert that top floor apartments have water
seepage. However, only one top floor tenant (apartment 17) cites
water seepage problems on appeal.
The applicable law is Section 2523.4 of the Rent
Stabilization Code and Section 2202.16 of the Rent and Eviction
Regulations.
After careful consideration, the Administrator is of the
ADM. REVIEW DOCKET NO.: FG 430116 RO
opinion that the petition should be granted in part and the
Administrator's order should be modified.
Damaged tar paper and an accumulation of water on the roof
does not establish that the roof is defective in the absence of
any other evidence of water seepage. Since the inspector did not
report any water stains or peeling paint and plaster caused by
excessive moisture in any of the public areas, a rent reduction
for the condition of the roof is not warranted. Accordingly, the
$5.00 per month rent reduction for rent controlled tenants for
this item is revoked. For leak damage or water seepage within
the top floor apartments, the tenants of those apartments may
file individual complaints.
As for the metal supports beneath the bay windows, the
Commissioner finds that the record adequately supports the
Administrator's determination that a rent reduction for this
condition is warranted. The tenants alleged in their complaint a
general deterioration of the exterior of the building and
specifically referred to the metal supports being separated,
split, hanging down, and corroded. The two physical inspections
confirmed this condition, including the second inspection which
took place after the owner claims repairs were done in December
1990. The Administrator properly relied on the results of these
inspections and the owner has not established any basis for
revoking or modifying that determination.
The condition cited affects not only the aesthetic
appearance of the building but indicates a deterioration in the
facade with possible impairment of the structural integrity of
the building or at least of the bay windows, and therefore
affects all tenants who reside therein and not just those whose
apartments adjoin the defective condition. The owner's evidence
regarding repairs is not sufficient to contradict the results of
the inspection that post-dated the purported repairs. The
invoice by the contractor who did the work refers to repairs to
"the holes in the first floor north cornice with aluminum" and
does not refer to any repairs to the metal supports for the bay
windows, which were found to be defective in two inspections.
This portion of the Administrator's order is, therefore,
affirmed.
As to the other building-wide and individual apartment
conditions cited in the tenants' responses, the Commissioner
notes that responses to an administrative appeal are not the
proper vehicle to raise new service issues nor to challenge the
Administrator's findings below. However, the order is issued
without prejudice to the tenants' right to file complaints for
other current individual or building-wide services diminutions,
if any.
The Commissioner further notes these proceedings are not the
proper venue for determinations relating to landmark building
ADM. REVIEW DOCKET NO.: FG 430116 RO
status.
The payment of any arrears owed by the rent controlled
tenants to the owner as a result of this order may be paid in six
equal monthly installments.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, the Rent Control Law and the Rent and
Eviction 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 modified to delete the damaged tar paper and water
accumulation on the roof as a basis for a rent reduction and the
$5.00 per month rent reduction for rent controlled tenants for
this item is hereby revoked effective June 7, 1991. In all other
respects the Administrator's order is affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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