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STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NY 11433
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
FJ 130178-RO
RENT ADMINISTRATOR'S
ALIZIO MANAGEMENT, DOCKET NO.:
EE 130059-B
PREMISES:
83-36 Beverly Road
PETITIONER Kew Gardens, NY
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely petition for administrative
review of an order issued on September 16, 1991 concerning the
housing accommodation relating to the above-described docket
number.
The Commissioner has reviewed all the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the petition.
Various tenants commenced this proceeding on May 14, 1990 by filing
a complaint asserting that there is a "gaping hole in front of main
door covered by rotting wooden boards"; that there is "poor water
pressure all day in kitchen and bathroom"; that there is "no super
or porter employed"; that heat and hot water are not provided on a
regular basis; that there is "leakage from windows, walls and
plumbing"; that the plumbing leaks and is noisy; that in the public
areas, carpets are torn and filthy and walls need painting; that
the intercom does not work "regularly"; that the lock on front door
is broken; and that in the garage, the pipes are covered with
asbestos and leak and the ceiling is falling; that the garage door
is broken and cars are being vandalized.
The tenants' complaint was mailed to Alizio Management ("Alizio")
on May 30, 1990. The Administrator's file does not indicate any
response from Alizio.
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Thereafter, on August 27, 1991, an on-site inspection of the
subject building was conducted by a DHCR staff member who reported
that the sidewalk at the main entrance door is uneven and cracked;
that the janitorial service needs improvement; that there is
evidence of leaks from the windows of the public areas on the 6th,
5th, 4th and lobby floors; that the carpeting in the public areas
on all floors is dirty and stained; that the bulkhead walls around
the windows and the 6th floor walls near Apartment 6-E and
Apartment 6-G have peeling paint and plaster; that the door lock on
the main entrance is defective; that the garage walls and ceiling
need painting; and that the garage floor near the left side is wet.
Based on this inspection, the Administrator directed the restora-
tion of services and further ordered a reduction of the stabilized
rents effective June 1, 1990.
In this petition, Alonzio Management alleges that it is the owner
of the shares of stock allocated to the rent stabilized apartments
covered by the Administrator's order. It asserts that the order
should not apply to the occupants of Apartments 2-C, 4-C, 4-G and
5-F because they are co-op owners, not tenants; that Apartments 2-G
and 6-A have been vacated and are no longer subject to the Rent
Stabilization Law and Code; that Alizio Management is not the owner
and only the managing agent without control over building-wide
services; that at the time of the complaint, 82-02 Lefferts Tenants
Corp. owned the building; that it answered the complaint below,
stating that it is not responsible for the building operation; that
the tenants did not complain of window defects, "water leaks lobby"
and "walls bulkhead"; that the owner was not made aware of the
inspection and the inspection report; that the tenants have no
right to complain about the garage because the complainants herein
are not entitled to use the garage; and that all services were
restored before the issuance of the order. The only proof
submitted by the owner for its contentions is an affidavit from one
of its managers basically repeating the assertions of the petition.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
Initially the Commissioner notes that the scope of review in admin-
istrative appeals is limited, pursuant to Section 2529.6 of the
Code, to a review of the facts or evidence that were before the
Administrator.
Petitioner has asserted that the tenants of Apartments 2-C, 4-C,
4-G and F-5 purchased their apartments and that Apartments 2-G and
6-A have become vacant and has argued that by virtue of these
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events the above-mentioned units are no longer subject to the Rent
Stabilization Law and Code. Petitioner, however, submitted abso-
lutely no evidence in support of these factual allegations and,
thus, its claim of a lack of DHCR jurisdiction over the six apart-
ments must be denied. Notwithstanding the above determination, as
petitioner correctly points out, in the event that a tenant in the
subject building purchases the shares allocated to his or her
apartment, or vacates his or her unit then at that point in time
the apartment in question will cease to be governed by the Rent
Stabilization Law and Code.
Petitioner has further asserted that it is only the owner of the
shares allocated to the subject apartments and has no authority to
make repairs at issue herein, which are located in the public areas
of the building, and that the responsibility for repairs rests with
82-04 Tenants Corp., the cooperative cooperation that owns the
building.
Firstly, it must be noted that as a proprietary lessee of rent
stabilized housing accommodations, Alizio Management is an owner of
such housing accommodations within the meaning of the Rent
Stabilization Code (See Section 2520.6(i)) and is clearly a proper
party to this proceeding. As the owner of the subject apartments,
Alizio Management has ultimate responsibility for maintaining all
required services to these units, and the fact that this responsi-
bility may be shared with the cooperative corporation with regard
to "common" services does not relieve the proprietary lessee of its
basic obligation.
The petitioner's contention that the tenants' allegations in the
complaint filed on May 14, 1990 did not put it on notice of window
defects, "water leaks lobby" and "walls bulkhead" is belied by the
record. The tenants' complaint, as set forth above, states that
there is "leakage from windows, walls and plumbing"; that there is
a "gaping hole in front of main door covered by rotting wooden
boards"; that the plumbing leaks and is noisy; that in the public
areas, carpets are torn and filthy and walls need painting; and
that the lock on front door is broken.
In view of the above-finding that the tenants' complaint provided
the owner with sufficient notice of the problems at issue, it is
further determined that the failure of the Rent Administrator to
apprise the owner of the results of the physical inspection
conducted during the proceedings below did not constitute a denial
of due process. (Empress Manor Apartments v. DHCR, 538 NYS 2d 49,
147 A.D. 2d 64).
Although the petitioner has further specifically contended that the
hole in front of the main entrance door was repaired in April 1991;
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janitorial service is provided by the resident superintendent; the
hallway carpeting is cleaned twice a week; the bulkhead area was
plastered and painted in September 1991, prior to the issuance of
the Rent Administrator's order; and that the main entrance door has
also been in good working order these contentions are unsupported
by any evidence of repairs done prior to the issuance of the
Administrator's order and are belied by the agency inspector who
personally observed on August 27, 1991 that at that time certain
services were not being provided or maintained. The finding of
decreased services, as corroborated by the on-site inspection,
warrants a rent reduction.
As set forth above, the petitioner has failed to establish that the
complaining tenants are not subject to the Rent Stabilization Law
and Code. Accordingly, these tenants are also entitled to
ancillary services, such as the garage and the petitioner has also
failed to establish that the garage is not available for use by
stabilized tenants. Moreover, the petitioner's failure to raise
the issue of entitlement to garage use below precludes investiga-
tion of this matter for the first time on appeal.
Thus, the Commissioner finds that the Administrator properly based
his determination on the entire record, including the results of
the on-site physical inspection conducted on August 27, 1991; that
pursuant to Section 2523.4(a) of the Code, the Administrator
properly determined that the owner had failed to maintain services;
and accordingly, the Administrator properly reduced the rent.
THEREFORE, in accordance with the provisions of the Rent Stabili-
zation Law and Code, it is,
ORDERED, that this petition be, and the same hereby is, denied, and
the Administrator's order be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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