FI 130494 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
          APPEAL OF                               DOCKET NO.: FI 130494 RT
                                                  
          SUSAN RODRIGUEZ                         DISTRICT RENT
          JOHN SZEWCZUK, REP.                     ADMINISTRATOR'S DOCKET    
                                                  NO.: EH 130020 RP
                                 PETITIONERS            
          ----------------------------------x


            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                  IN PART AND MODIFYING RENT ADMINISTRATOR'S ORDER

               On September 16, 1991 the above named petitioners-tenants 
          timely refiled a Petition for Administrative Review against an 
          order of the Rent Administrator issued March 14, 1991. The order 
          concerned housing accommodations located at 82-15 35th Ave., 
          Jackson Heights, N.Y.  The Administrator issued an order revoking 
          a prior order bearing Docket No. CJ 130109 B and ordering rent 
          restoration for all rent regulated tenants affected by that order.

               The Commissioner has reviewed the record and carefully 
          considered that portion relevant to the issues raised by this 
          appeal.

               This proceeding was originally commenced when the tenants 
          filed a Statement of Complaint of Decrease in Services on October 
          11, 1988  wherein they alleged that the owner was failing to 
          provide certain required services and requested a rent reduction.  
          After the owner responded to the complaint and a physical 
          inspection of the building was held, the Administrator issued an 
          order (Docket No. CJ 130109 B) which ordered a rent reduction for 
          rent controlled and rent stabilized tenants based on the 
          inspector's report of peeling paint and plaster to the bulkhead and 
          basement walls.  The inspector also reported that four building- 
          wide services were being maintained, despite the tenants' 
          statements to the contrary.

               Both the owner and tenants took administrative appeals from 
          this order.  On August 3, 1990 the Commissioner issued an Order and 
          Opinion remanding the proceeding to the Rent Administrator (see 
          Docket Nos. DI 130210 RT and DJ 130388 RO).  The Administrator was 
          instructed to reconsider the matter, by whatever means were found 
          useful, after appropriate notice to the parties.













          FI 130494 RT

               Pursuant to the Commissioner's order of remand, the 
          Administrator sent a Notice of Proceeding to Reconsider Order to 
          the parties on November 7, 1990.  The parties were afforded an 
          opportunity to file an answer and present any relevant evidence.

               On November 30, 1990 the owner, represented by counsel, filed 
          an answer to the Administrator's notice.  The owner stated that the 
          original order should be revoked in its entirety and the rent 
          ordered restored.  The owner premised its argument on the Order and 
          Opinion of the Commissioner wherein the proceeding was remanded.  
          In that order the Commissioner had stated that, if the only service 
          found not to have been maintained was peeling paint and plaster in 
          a non-public area, then this was an insufficient basis on which to 
          order the rent reduction.  The owner also stated that the 
          inspector, who conducted a fair and impartial inspection without 
          notice to either party, did not report any other building-wide 
          service reductions in response to the tenants complaint.  The owner 
          also made the following statements:

                    1.   The bulkhead and basement areas were scrapped and 
                         painted in February, 1990,

                    2.   The tenants' attack on the Administrator's original 
                         order with respect to failure to paint the outside 
                         of the building is an attempt to exceed the scope 
                         of the original complaint.  The original complaint 
                         spoke of the need for painting in the common areas 
                         which should be deemed to refer to the inside of 
                         the building only.  The owner states that the 
                         outside of the building is brick and that the fire 
                         escapes were painted in 1987,

                    3.   The owner has not received any violation notices, 
                         regarding the outside of the building, from the New 
                         York City Department of Housing Preservation and 
                         Development,

                    4.   There is a regular extermination service available 
                         at least twice a month for the tenants' use.  The 
                         owner attaches certain letters and invoices from 
                         the service, which are offered to show the regular 
                         nature of the service,

                    5.   There is no garbage accumulation or foul odors, as 
                         the inspector reported.  A new trash compactor was 
                         installed in the summer of 1990,

                    6.   The elevator light is constantly being broken by 
                         vandals but a vandal resistant light has now been 
                         installed and a new elevator floor has been laid 
                         down,







          FI 130494 RT

                    7.   Painting and repairs have been done throughout the 
                         common areas and the hallway and lobby areas are 
                         regularly swept and washed.

          As noted above, the owner attached numerous letter, bills and 
          invoices to its answer.

               Although the tenants were served with copies of the 
          Administrator's notice, there were no responses thereto.  The 
          Commissioner notes that the record contains 7 copies of the notice 
          which were returned by the Post Office based on the fact that the 
          tenants had moved with no forwarding addresses.  The Commissioner 
          further notes that the record contains a copy of the tenants' 
          Petition for Administrative Review, filed against the original rent 
          reduction order.  The tenants had submitted approximately 56 
          photographs taken a week after the issuance of the Administrator's 
          rent reduction order.  The photographs showed chipped and peeling 
          paint in the public areas, stains, discolorations, accumulations of 
          dirt and debris, a roach crawling on a wall and an unsecured 
          handrail.  The tenants argued that these conditions could not have 
          come about in the time after the inspection and that they, in fact, 
          existed from the time of the filing of the complaint.

               The Administrator issued the order here under review on March 
          14, 1991.  After summarizing the relevant procedural history 
          herein, the Administrator stated the following:

                    "It is noted that, in the instant proceedings review of 
                    the original file, that the other complaints re: garbage 
                    accumulation, foul odors, vermin infestation and dirty 
                    public areas, were not found to be in evidence at 
                    inspection, that portion of the order will stand on its 
                    merits and no inspection was held in this proceeding.

                    That portion of the order regarding the reduction for 
                    peeling paint and plaster on bulkhead and basement walls 
                    was not warranted... .

                    Therefore, it is ordered that the above held order be and 
                    it hereby is revoked.

          The Administrator ordered rent restoration of $4.00 per month for 
          rent controlled tenants effective September 1, 1989.  The rent for 
          rent stabilized tenants was ordered restored by one rent guideline 
          adjustment effective December 1, 1988.

               On appeal the tenants state the following:

                    1.   The order here under review was arbitrary and 
                         capricious in that the Administrator issued said 
                         order without benefit of an additional inspection.  
                         The rent reduction should not have been revoked 












          FI 130494 RT

                    because the peeling paint and plaster was located 
                         in a the laundry room area.  Said laundry room was 
                         found to be a required service pursuant to a DHCR 
                         order issued in September, 1986.  The tenants argue 
                         that if the laundry room was found to be a required 
                         service, than the area outside it in the basement 
                         is an area frequented by the tenants and peeling 
                         paint and plaster in that area cannot be said to 
                         exist in a non-public area.

                    2.   No inspection has been performed of the interior 
                         hallways, ceilings or stairs despite the 
                         photographic evidence submitted showing unclean and 
                         unsanitary conditions existing.

                    3.   The stripping and cleaning of the floors did not 
                         occur until August, 1990 and the owner did not 
                         offer any evidence of restoration of floor 
                         maintenance service prior to that date.  The 
                         photographic evidence again demonstrates that the 
                         floor areas were not being maintained.

                    4.   The Order and Opinion of the Commissioner which 
                         remanded this proceeding for further investigation 
                         states that the tenants' photographic evidence 
                         "casts doubt on the general correctness of the 
                         instant order."  The petitioners state that, based 
                         on this statement of the Commissioner, the 
                         Administrator should have at least ordered an 
                         inspection or required the owner to certify that 
                         services were restored.

               The owner filed a response on June 29, 1992.  It stated that
          the Commissioner's remand order did not command the Administrator 
          to order an additional inspection but, rather, to reconsider this 
          matter "by whatever means are found useful".  The owner states that 
          an additional inspection would have been irrelevant, since it would 
          have been conducted 2 years after the issuance of the original rent 
          reduction order and 3 years after the filing of the complaint.  The 
          owner stands on the report of the inspector, which was filed after 
          the May 9, 1989 inspection, with regard to the services found to 
          have been maintained.  Finally, the owner states that any 
          complaints about the exterior of the building fall outside of the 
          scope of the complaint and that there have been no building 
          violations issued by the New York City Department of Health or 
          Buildings.   
           
               After careful review of the evidence in the record, the 
          Commissioner is of the opinion that the petition should be granted 
          in part.  A rent reduction of $4.00 per month is ordered for rent 
          controlled tenants effective September 1, 1989.  A rent reduction 
          equal to the most recent guideline adjustment for rent stabilized 






          FI 130494 RT

          tenants is ordered effective December 1, 1988. The Commissioner 
          orders rent restoration for all rent regulated tenants effective 
          April 1, 1990.

               The Commissioner rejects those parts of the tenants' petition 
          which challenge the order here under review based on the inadequacy 
          of the physical inspection.  Any reading of the Commissioner's 
          August 3, 1990 order of remand as requiring the Administrator to 
          conduct another inspection is erroneous.  It was left to the 
          Administrator to determine this matter, based on the reasonable 
          exercise of discretion.  The Commissioner finds that the 
          Administrator's decision not to order another inspection was a 
          reasonable exercise of discretion, especially in light of the time 
          period which had elapsed since the initial inspection (May 9, 
          1989).  

               The Commissioner further finds, however, that the 
          Administrator erred in revoking the order here under review as it 
          relates to the peeling paint and plaster in the bulkhead and 
          basement area.  In an Order and Opinion issued November 15, 1991 
          (see Docket No. AL 110439 RO et. al.) the Commissioner found, inter 
          alia, that the basement laundry room in the subject building is a 
          required service which the owner must maintain.  Therefore, the 
          tenants are correct in that the area surrounding said laundry room 
          is a public area which is also required to be maintained.  Peeling 
          paint and plaster in this public area is a reduction is services 
          for which a rent reduction is required.

               In attempting to impose an equitable remedy, the Commissioner 
          sent a Notice of Opportunity to Present Information to the tenants 
          on July 2, 1990.  The tenants were asked to provide information 
          regarding the time when the owner had repaired the basement and 
          bulkhead area.  The Commissioner notes, as stated above, that the 
          owner alleged that repairs were completed in February, 1990.  The 
          tenants filed a response on July 20, 1990, wherein they stated that 
          the repairs were completed in "the spring of 1990."  Therefore, the 
          Commissioner will reinstate the rent reduction ordered by the 
          Administrator in the order bearing Docket No. CJ 130109 RO.  The 
          rent is hereby ordered restored effective April 1, 1990, the first 
          rent payment date following restoration of services.
           
               THEREFORE, pursuant to the Rent Stabilization Law and Code and 
          Rent and Eviction Regulations it is 





               ORDERED, that this petition be, and the same hereby is, 
          granted in part, and that the Rent Administrator's order be, and 
          the same hereby is, modified in accordance with this order and 
          opinion.












          FI 130494 RT


          ISSUED:



                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Acting Deputy Commissioner
    

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