FD230348RO
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.: FD230348RO
MIDWOOD REALTY ASSOCIATES RENT
ADMINISTRATOR'S DOCKET
NO.: EB230109OR
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND MODIFYING RENT ADMINISTRATOR'S ORDER
On April 29, 1991 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued March 27, 1991. The order concerned housing
accommodations located at 1414 East 12th Street, Brooklyn, N.Y.
The Administrator denied the owner's application for rent
restoration based on a finding that services had not been fully
restored.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The owner commenced this proceeding by filing an Application
to Restore Rent on February 2, 1990 wherein it alleged that it had
restored services for which a rent reduction order bearing Docket
No. 74881B had been issued. The tenants were served with a copy of
the application and afforded an opportunity to respond.
The tenants' representative filed a response to the
application on April 12, 1990 wherein it was stated that the
application should be denied because there is water seepage through
the outer walls and around windows in Apts. 5A, 6A and 6B. The
tenants further stated that stucco is peeling from the building
facade and is falling in several locations. Finally, the tenants
stated that interest was not being paid on security deposits. Two
individual tenants filed responses. The tenant of apartment 6A
stated that there was a water seepage from the living room windows.
The tenant of Apt. 3L stated that her windows were not working
properly as they fall down and close after they are opened.
The Administrator ordered a physical inspection of the subject
building. The inspection was conducted on October 3 and October 5,
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1990 and revealed the following:
1. Defective basement window locks which do not close
properly,
2. Cracked basement window panes,
3. No sign posted in the public area to indicate the
availability of exterminating services,
4. Second floor hallway ceiling has peeling paint and
plaster,
5. Defective windows in the following apartments--1A,
IF, IG, IH, 3L, 3N, 4G, 5C, 5D, 6A and 6B (specific
problems noted in order).
The following services were found to have been maintained:
1. No evidence of water seepage and leaks through
walls and around windows throughout public areas,
2. No evidence of defective public area windows,
3. No evidence of peeling paint on fire escapes,
4. Garden area clean; bushes maintained,
5. Compactor operable,
6. Compactor area clean,
7. No evidence of debris accumulation in basement,
8. No evidence of roach or rodent infestation in
public areas,
9. Superintendent resides in building,
10. Vestibule door locks properly,
11. Tenants can gain access or egress from side
entrance door,
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12. No evidence of clogged exterior drainage system,
13. No evidence of defective fences,
14. Lobby and hallways clean,
15. No evidence of defective mailboxes,
16. No evidence of water seepage and leaks into walls
and around windows of all apartments,
17. Hot water temperature adequate.
The Administrator sent the owner a notice dated October 24,
1990. The owner was advised of the results of the inspection and
afforded an opportunity to substantiate the completion of repairs
to all services which the inspector reported had not been restored.
The owner failed to respond to the notice. A second notice was
sent on December 6, 1990. The owner again failed to respond. The
Administrator deemed that the owner had admitted that the services
noted above had not been restored.
The Administrator issued the order here under review on March
27, 1991 and denied the application for rent restoration based on
the report of the inspector and the failure of the owner to respond
to the above-described notices.
On appeal the owner makes the following arguments for reversal
of the order here under review:
1. By letter dated July 12, 1989 the DHCR Compliance
Bureau stated that the owner had complied with the
directives contained in the order bearing Docket
No. 74881B and was advised to file for rent
restoration. The owner's application resulted in
the instant denial with the owner not being
notified of the inspection or afforded an
opportunity to comment thereon. The owner states
that this constituted a denial of due process,
2. The owner was entitled to notice of the inspection
and had the right to be present at the time
thereof. The owner argues that the failure to
afford the owner these rights constituted a denial
of due process,
3. A rent reduction for defective basement window
locks is inappropriate for tenants who do not
reside in the basement. The owner argues that a
tenant must be directly affected by a service
reduction to qualify for a decrease in rent,
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4. The owner is providing exterminator services and
the lack of a sign in the public area is due to the
fact that the sign is being constantly removed,
5. A DHCR order (see Docket No. DB230138OR) issued
August 11, 1989 states that the public areas of the
building had been painted and plastered. Any
peeling paint and plaster found thereafter is a de
minimis violation and not proper grounds for
denying the rent restoration application,
6. The owner installed new replacement windows in the
building and the DHCR Compliance Bureau confirmed
that fact. Any problems with individual windows
are in the nature of routine maintenance and should
not constitute grounds for denial of rent
restoration. The owner listed the repairs
allegedly made to the individual apartment windows
in question. Worksheets signed by the tenants of
all apartments except Apt. 1-G were annexed to the
petition. The worksheets all indicate that the
owner had made repairs or that no problems exist
with the windows. The owner states that it could
not gain access to Apt. 1G,
7. The owner attaches a letter from a window
contractor to the petition. The letter, dated
September 2, 1988, states that the windows are in
good working order and meet industry standards.
The contractor states that the complaints regarding
the inability of the windows to move up and down
easily are based on the fact that the tenants
involved are elderly and "may not have the
strength" to open and close the windows properly.
The petition was served on the tenants on May 28, 1991.
On June 14, 1991 a neighborhood tenants' council representing
the tenants of the subject building filed a response to the
petition and requested additional time to respond, due to the
complexity of the issues involved. No further response was ever
received. One individual tenant filed a response on June 2, 1991
and stated that the building roof leaks and the ceiling in his
bedroom is wet and that the entrance door to his apartment is
cracked and cannot be locked.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
Addressing the owner's arguments in the order presented, the
fact that the DHCR Compliance Bureau sent a letter to the owner
advising it that the compliance proceeding was being closed has no
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bearing on the issue of rent restoration. Indeed, in the letter
sent to the owner by the Compliance Bureau and dated July 12, 1989
the owner is advised that the rent restoration proceeding is a
separate and different proceeding requiring a different docket
number and that the rent would not be restored until the DHCR
issues an order granting the owner's application.
With regard to the issue of the owner's right to be informed
of the inspection as well as the right to be present at the time
thereof, the Commissioner notes that numerous prior decisions have
held that an owner is not entitled to notice of an inspection or
the right to be present at the time thereof. The courts have
upheld this policy (see Empress Manor Apts. v. DHCR 147 A.D.2d 642,
538 N.Y.S.2d 49 [2nd Dept. 1989]).
The Commissioner has rejected claims that only tenants who are
affected by the services decrease qualify for a rent reduction. In
this proceeding the inspector reported a services decrease in a
common area of the building (the basement). All tenants of the
building are entitled to the proper maintenance of the public
areas, regardless of where in the building they may physically
reside. Thus, the owner's claim is rejected.
The Commissioner has examined the original rent reduction
order as well as the inspector's report herein and agrees that the
lack of an extermination sign, in and of itself, is not prima facie
proof that the owner is not providing exterminator services.
Accordingly, the Administrator's finding regarding exterminator
services is revoked. The revocation of the Administrator's
finding, however, does not effect the denial of the owner's
petition since the exterminator service issue was but one condition
the owner had to demonstrate was remedied. There remained
independent grounds for the Administrator to determine that the
owner had not restored services.
The remainder of the owner's petition states an attack on the
report of the DHCR inspector. The Commissioner rejects the owner's
contentions. Regardless of the fact that the owner may have
painted and plastered in the public areas, the owner bears the
responsibility of maintaining the areas once they have been
repaired. The report of the inspector clearly indicates that the
second floor hallway ceiling had peeling paint and plaster.
Similarly, the inspector detailed specific problems with the
individual windows. It is settled law that the report of a DHCR
inspector is entitled to more probative weight than the unsupported
allegations of a party to the proceeding. The owner has failed to
provide any evidence to rebut the inspector's report. In sum, the
order here under review is modified to delete the Administrator's
finding regarding the posting of signs relating to the availability
of extermination services. As modified, the order is affirmed.
The owner may refile for rent restoration when all services have
been restored.
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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, affirmed as modified herein.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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