FG 430516 RT; FG 430517 RT
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
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.:
FG 430516 RT
FG 430517 RT
HARRY C. SMITH, TENANT REP. RENT
JANET C. KORIATH, TENANT REP. ADMINISTRATOR'S DOCKET
NOS.: ED 430031 RP
(CJ 430142 B)
PETITIONERS ED 430029 RP
----------------------------------x (CJ 430141 B)
ORDER AND OPINION GRANTING TENANTS' PETITIONS FOR ADMINISTRATIVE
REVIEW AND REMANDING PROCEEDING TO RENT ADMINISTRATOR
The above named petitioner-tenants, acting as tenant
representatives, filed timely Petitions for Administrative Review
against orders of the Rent Administrator issued at Gertz Plaza,
Jamaica, N.Y. concerning the housing accommodations known as 83-89
Barrow Street and 63-69 Morton Street, New York, N.Y.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by these
appeals.
The orders appealed herein revoked previously issued building-
wide rent reductions after a physical inspection on May 29, 1991
revealed no defects in the door locks leading from the rear of each
building to the courtyard. The inspector also reported that a
gate on Hudson Street to the middle courtyard was locked, that
laundry rooms were provided in both buildings and that there was a
storage room in the Barrow Street basement accessible to all
tenants through the superintendent.
In the two petitions for administrative review filed by the
tenants associations for the respective buildings, the tenants
acknowledge that services have been 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
storage space for almost two years after the tenants' complaint.
The owner was served with copies of the petitions in June 1992
and submitted answers through counsel.
FG 430516 RT; FG 430517 RT
In that answer the owner first asserts that since the
petitions did not include evidence of authority to act in a
representative capacity at the time they were filed, any
determination by the Commissioner can effect only apartments 5D of
63 Morton Street and apartments 4K and 4L of 83 Barrow Street, the
residences of the tenant representatives. The owner further
contends in substance that, with regard to the door locks, the rear
exit doors never had locks until recently when they were installed
solely because of the original rent reduction orders. The owner
states that the rear exit doors need not be locked because they
lead only to an enclosed courtyard that is not accessible to
nonresidents and that the real security issue in this case involves
the Hudson Street gate which has always been locked. The owner
asserts that another physical inspection at this time on remand
would be pointless.
As for the laundry room, the owner contends that this issue
was decided in the owner's favor in prior Office of Rent Control
and Conciliation and Appeals Board (CAB) proceedings and to raise
it again now constitutes an impermissible collateral attack on a
final administrative determination. The owner also asserts that
there is no basis for finding that laundry room services are either
required or essential services. They were not in place in 1968,
according to the owner, and there was no increase in the maximum
rent when they were subsequently installed. The owner also argues
that there is also no basis for finding that the laundry facilities
are a substitute for denial of access to clotheslines on the roof
since it was never established that access to the roof was an
essential service provided to the tenants and even if it were,
there is no provision for allowing an owner to substitute one
service for another. Inasmuch as the laundry facilities were
always provided by an independent contractor, the owner states that
they were not required services for rent stabilized tenants. As
for storage space, the owner asserts that this was also determined
in a prior proceeding before the CAB, that there was never a
finding that storage space had been eliminated, and it is not
unreasonable or a reduction in services to require tenants to
notify the owner that they need storage.
After careful consideration, the Commissioner is of the
opinion that these proceedings should be remanded to the
Administrator for further consideration as more fully set forth
below and to be consolidated with the proceedings remanded by the
Commissioner's order issued on July 20, 1992 under Docket No. EH
430087 RO et al. which resolved owner's petitions and individual
tenants' petitions against the same Administrator's orders.
The reasons for the remand and the specific directives to the
Administrator regarding the issues to be determined are contained
in the Commissioner's July 20, 1992 order to which the parties are
referred. Pursuant to that order, the Administrator will determine
FG 430516 RT; FG 430517 RT
on remand whether a rent reduction is warranted for defective door
locks, the elimination of the Barrow Street laundry room and the
deprivation of storage facilities. The effective dates of such
rent reductions, if any, will be determined, as well as the dates
of rent restoration.
An additional matter to be resolved in the instant proceedings
concerns the validity of the purported representative capacity of
the petitioners herein. The petitioners have established by means
of signed certified mail receipts that the instant petitions were
timely filed in July 1991. However, since the Division had no
record of the filings they were not docketed until June 1992 when
the tenants' proof was received.
The absence of evidence of authority to act in a
representative capacity was brought to the attention of the
petitioners on July 8 and 17, 1992 and they responded in a timely
manner with the appropriate documentation. Under the circumstances
of these cases, including the Division's apparent misplacement of
the original petitions, the petitioners' prompt cure of the defects
in the petitions and the Administrator's improper revocation of the
rent reduction, the Commissioner finds that any rent reductions
subsequently ordered by the Administrator pursuant to this remand
should apply to all rent controlled tenants in the subject
buildings and to those rent stabilized tenants who joined in the
complaints.
The Commissioner notes that in an October 15, 1990 order of
Judge Pecora, the implementation of the August 24, 1989 rent
reduction order was stayed pending a final determination of the
matter on the condition that the owner deposit all rent collected
in excess of legal rent into an interest bearing account
established by the owner's attorney. The stay was ordered to be
continued by the Court (Lehner, J.) which ordered the proceeding
remanded to the agency. Accordingly, pending a final determination
in this proceeding by the Division, the parties are advised that
there is no rent abatement in effect. All rent payments in excess
of the abated amount made by the tenants shall, consistent with
Judge Lehner's order, be held by the owner's attorney in an
interest bearing escrow account.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code and Rent and Eviction Regulations for
New York City, it is,
FG 430516 RT; FG 430517 RT
ORDERED that these petitions for administrative review be, and
the same hereby are, granted and that the proceedings be, and the
same hereby are, remanded to the Rent Administrator for
consolidation with the proceedings remanded by the Commissioner on
July 20, 1992 (EH 430087 RO).
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
|
