FI 130284 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.: FI 130284 RO
FOOTHILL TERRACE ASSOCIATES DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: EC 130022 B
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 5, 1991 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued August 1, 1991. The order concerned housing
accommodations located at 210-40 Grand Central Parkway, Queens
Village, N.Y. The Administrator ordered a building-wide rent
reduction for failure to maintain required services.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
This proceeding was commenced on March 22, 1990 when 10 of
the 24 tenants of the building joined in the filing of a Statement
of Complaint of Decrease in Building-Wide Services wherein they
alleged the following services deficiencies:
1. Broken front door lock,
2. Roof door open,
3. Intercom system not working in some apartments,
4. Problems with hot and cold water in that cold water
remains hot after hot water is run.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on April 9,
1990 and stated that the front door is constantly checked by
maintenance personnel and repaired as needed, that any problems
with the door are caused by the tenants, that the roof door is
locked by a hook and eye lock which is in good working order, that
the tenants have not reported any problems with the roof door, that
water temperature may have fluctuated due to the installation of a
FI 130284 RO
new water heater and that repairs were made to the intercom of
apartment 1G. The owner attached to the answer a copy of a work
order for the repair of the intercom of Apartment 1G as well as the
invoice for the installation of the water heater mentioned above.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on April 24, 1991 and
revealed the following:
1. Buzzer release mechanism defective at vestibule
door,
2. Roof door not locked.
The Administrator advised the tenants to file individual apartment
complaints if any intercoms were broken.
The Administrator issued the order here under review on August
1, 1991 and ordered a rent reduction equal to the most recent
guideline adjustment based on the report of the inspector.
On appeal the owner, through counsel, states that it was
denied due process in not receiving notice of the inspection and a
copy of the inspector's report. The owner states that the order
here under review is defective in that it does not state what
specific problem exists with the buzzer release mechanism and that
security within the building is not threatened by any defect. It
is the owner's contention that any problem with the release
mechanism is in the nature of routine maintenance and that such
problems do not warrant a rent adjustment. Furthermore, the owner
argues that the tenants' complaint of a defective front door lock
did not put it on notice that there was a problem with the buzzer
mechanism.
With regard to the roof door, the owner states that the door
is secured as required by law and that, if the door has been found
to be open, it is caused by the tenants and their children who
leave the door open when they go on the roof.
Three tenants filed responses to the petition. Two tenants
stated that the buzzer release mechanism, door lock and intercoms
are one system designed to operate together and that the complaint
should be read as including defects in the buzzer system. The two
tenants desire that the order here under review be affirmed. The
third tenant stated that, to the best of his knowledge, the
problems appear to have been repaired.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
The Commissioner rejects the owner's contention that it was
entitled to notice of the inspection, a copy of the inspection
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report and a hearing. Numerous prior orders of the Commissioner
have stated that due process is satisfied, and the owner put on
notice, by the service of the complaint. The owner is not entitled
to any further notice or opportunity to be heard. The courts have
affirmed this policy. (see Empress Manor Apartments v. DHCR 538
N.Y.S.2d 49, 2nd Dept. [1989])
The Commissioner also rejects the owner's assertion that the
complaint regarding a defective front door lock did not put it on
notice of a problem with the buzzer mechanism. Since a buzzer
mechanism controls the operation of the front door lock, the
Commissioner finds the two to be related enough that a complaint
regarding problems with the lock should have prompted the owner to
investigate the buzzer mechanism and determine if it was
functioning properly. Furthermore, since the intercom system is
located at the vestibule door, the entrance door is not required to
be locked pursuant to the Housing Maintenance Code. Therefore, the
Commissioner finds the complaint put the owner on notice to inspect
the buzzer mechanism.
Furthermore, the inspector was not required to be more
specific in the report regarding the problem with the mechanism.
The inspector adequately investigated the complaint and the
determination made with regard to the buzzer did not have to
include a finding that building security was specifically
threatened.
The owner's argument with regard to the roof door is at
variance with the report of the inspector. Despite the owner's
statement that the door is locked as required by law, the inspector
specifically found the door open. It is settled law that the
report of a DHCR inspector is entitled to more probative weight
than the assertions of a party to the proceeding. It is not a
proper excuse to state that the door is open because the tenants
leave it in that condition. The owner is responsible for seeing to
it that the door remains closed either by conducting more frequent
inspections of the door, installing a more secure lock or taking
action against any tenant who leaves the door open.
Pursuant to 9 NYCRR 2523.4 (a) the tenants may apply to DHCR
for a rent reduction and the rent shall be reduced upon the finding
that the owner has failed to maintain required services. Such
services are defined to include repairs and maintenance. The
Commissioner finds that the Administrator properly based this
determination on the entire record, including the results of the
on-site physical inspection conducted on April 24, 1991. The order
here under review is affirmed.
The Commissioner notes that rent restoration was granted in an
order issued by the Administrator on May 22, 1992 (see Docket No.
FI 130284 RO
FI 130084 OR).
THEREFORE, pursuant to the Rent Stabilization Law and Code it
is
ORDERED, that this petition be, and the same hereby is,
denied, and that the Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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