FJ 430245 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.: FJ 430245 RO
H & I ASSOCIATES DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: FA 530100 B
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
PART AND MODIFYING ADMINISTRATOR'S ORDER
On October 17, 1991 the above named petitioner owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued September 12, 1991. The order concerned
housing accommodations located at 23 East 81st Street New York,
N.Y. The Administrator ordered a building-wide rent reduction
due to the owner's failure to maintain required or essential
services.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The tenants, by their representative, commenced this action
on January 14, 1991 by filing a Statement of Complaint of
Decrease in Building Wide Services. The tenants complained of
the following services deficiencies:
1. Faulty locks on outer building door; security
bars and jimmy bar removed from inner door.
2. Basement door improperly locked.
3. No access to basement or courtyard.
4. Basement storage space improperly taken away
by new owner.
5. Inadequate hot water.
6. Limited access to roof.
7. Fire extinguishers removed and never replaced.
8. Outside railing of stairs removed and never
replaced.
9. Erratic garbage pickup.
10. Inadequate cleaning and repairs of building.
11. Radiator removed from vestibule.
12. No sign posted with name and contact number for
off premises superintendent.
13. Failure to provide exterminator services.
An addendum to the complaint contained allegations by four
tenants. These allegations were to the effect that the owner
failed to maintain and clean roof drains, that one apartment was
suffering from water damage, that the owner reneged on a promise
to install a washer and dryer in the building, that the elevator
was constantly breaking and that the owner failed to replace
broken light bulbs. The owner was served with a copy of the
complaint and afforded an opportunity to respond.
The owner filed a response on February 21, 1991. In that
response, the owner stated:
1. A new door and lock on the front door had been
installed, as well as an intercom. There
was no need for a jimmy bar.
2. Basement door remains locked in owner's
discretion.
3. Access to basement not required by
tenants.
4. Tenants never permitted to store things in
basement.
5. Hot water problem corrected with installation of
new tank.
6. Tenant's never had access to courtyard or roof.
7. Building does not require extinguishers since
sprinkler system and emergency lights installed.
8. New steps installed in place of older deteriorating
ones.
9. Garbage picked up every day.
10. Building properly maintained.
11. Radiator not removed from vestibule.
12. Superintendent sign properly displayed.
On April 6, 1991 the Administrator received a letter from a
tenant of the building. The tenant stated that a new owner had
taken over the building in 1990 and locked the basement door.
Prior to that time, the tenant stated that the door had been open
and the basement accessible to the tenants for storage. The
tenant also stated that the new owner had locked the roof door,
which had also been open to the tenants.
On April 23, 1991 the Administrator sent the owner and
tenants a notice requesting documentation regarding the following
issues:
1. Basement -- Services requiring use; whether storage
space ever provided; date that change in services
occurred.
2. Courtyard, roof and basement access -- whether
services ever provided; what roof was used for;
dates that change in services occurred.
3. Vestibule radiator and exterior handrail --
where items were located; dates items removed.
4. Laundry service -- whether service ever pro-
vided; location and date of discontinuance.
5. Fire extinguishers -- number and locations;
date of discontinuance.
6. Garbage collection -- schedule; whether door
to door service provided; dates changes in services
occurred.
Three tenants responded to the Administrator's documentation
request. Tenant Lack provided a letter from the prior owner,
dated May 1, 1984, wherein the owner stated, inter alia, that any
storage items in the basement not properly tagged would be
removed or disposed of. She also provided two notices from the
current owner. The first, dated October 27, 1989, requested,
inter alia, that all items stored in the basement be removed so
that renovation could take place. The second, dated July 25,
1991, stated that the owner would create storage space in the
basement.
Tenant Foster submitted a response on May 9, 1991. In that
response, the tenant presented a letter from the attorney of the
former owner, dated November 20, 1987. That letter addressed the
issue of the tenant's keeping a bicycle chained on the ground
floor of the building. While objecting to this, the attorney
clearly stated, "We would be willing to allow you to store the
bicycle, with its component parts, in the basement."
The third tenant, Hibbs, also stated, inter alia, that
access to the basement had been provided, but supplied no
documentation. The owner's response to the Administrator's
request was submitted on May 14, 1991. The owner admitted, inter
alia, that the exterior building handrails were removed because
of deterioration and corrosion.
The Administrator ordered a physical inspection of the
premises, which was conducted June 6, 1991. That inspection
revealed the following:
1. No access to basement space and courtyard.
2. Handrails of entrance steps removed.
The following services were found to have been maintained:
1. Building entrance and vestibule door locks op-
erative and knobs not loose.
2. No evidence of garbage accumulation in public
areas.
3. Public areas clean.
4. No evidence of vermin infestation in public areas.
5. Elevator operative.
6. Public areas adequately lit.
7. Vestibule radiator in place.
The Administrator directed the tenants to file individual
complaints regarding decreases in apartment services. The issue
of laundry services was dismissed because the Administrator found
that the evidence indicated that such services were never
provided to the subject premises. With regard to the issue of
the use of the roof for recreational purposes, the Administrator
found that the evidence did not indicate that this service was
ever provided by the owner. The Administrator ordered a building-
wide rent reduction, based on the inspectors report.
On appeal, the owner states that there is access to the
basement through the superintendent. The owner points out that
tenant Lack retains a key to the basement, should an emergency
arise. Petitioner again states that basement storage was never a
provided service and any items stored in the basement were done
without the owner's knowledge or consent. A letter to that
effect, sent to tenant Foster by the petitioner, is annexed to
the petition. With regard to the courtyard access issue, the
owner annexes a letter from the previous owner, dated May 9,
1991, wherein it is stated that the tenants did not have
authorized access to the courtyard and that access was never a
provided service. The former owner states that the courtyard
leads to nowhere and was always locked. Finally, the owner
states that the decorative exterior handrail was removed because
it was corroded and non-functional. The owner points out that
the handrail was ornamental and "became detractive to the
building appearance since the facade, entrance and entrance steps
were completely redone."
One tenant filed a response to the petition and stated that,
prior to the new owner, all tenants had access to the basement
for storage, courtyard, roof deck and garden.
After a careful review of the evidence in the record the
Commissioner is of the opinion that the petition should be
granted in part, and the Administrator's order modified to delete
the courtyard from the list of services not being maintained.
Pursuant to 9 NYCRR 2520.6(r)(1) required services are
defined as "those services which the owner was maintaining or was
required to maintain on the applicable base date..., and any
additional space or services provided or required to be provided
thereafter by applicable law." The tenants have provided
sufficient documentation, in the form of the letters mentioned
above, to establish that basement storage was a required service
within the meaning of the Rent Stabilization Code. It is clear
that the new owner, the petitioner herein, sought to deny this
access and then argue that such access was never provided by the
former owner.
With regard to the issue of the handrail, the owner plainly
admits that the old rail was removed after it had deteriorated
due to corroding. The owner's attempt to explain this action,
i.e. that the rail was ornamental and detracted from the building
appearance, is wholly inadequate to negate the statutory duty to
maintain the service. Based on the owners own statements as
contained in the record, the Administrator was correct in finding
that the railing was a required service which was not being
provided.
Finally, with respect to the issue of access to the
courtyard, the Commissioner finds that there is insufficient
evidence to support the finding that the prior owner sanctioned
access and use of the courtyard for the purposes stated by the
tenants. A careful search of the record reveals no documenta-
tion of the kind that exists with regard to the basement storage
space. The owner, on the other hand, has supplied a letter from
the former owner, attesting to the fact that access and use of
the courtyard was never authorized and was not a required
service. It was error for the Administrator to base a
building-wide rent reduction, in part, on this basis.
Accordingly, the Administrator's order is modified to delete the
courtyard as a basis for the rent reduction. In order to obtain
rent restoration, the owner need not demonstrate that the tenants
now have access to the courtyard, however all other services must
be fully restored.
THEREFORE, pursuant to the Rent Stabilization Law and Code
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.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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