FF 630188-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
----------------------------------x SJR 6619 Deemed Denial
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
FF 630188-RO
HILL TOP HOUSE INC.,
RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONER ED 630123-B
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On June 11, 1991, the above-named petitioner-owner filed a peti-
tion for administrative review of an order issued on May 8, 1991,
by the Rent Administrator, concerning the housing accommodation
known as Various apartments at 500 Kappock Street, Bronx, New York,
wherein the Administrator determined that certain services have not
been provided or maintained, directed restoration of such services,
and ordered a rent reduction for all rent stabilized tenants who
joined in the complaint.
Subsequent thereto, the owner deemed its petition denied and filed
a petition for judicial review pursuant to Article 78 of the Civil
Practice Law and Rules. In an order dated December 14, 1992, the
proceeding was remitted to the Division pursuant to a stipulation
in which it was agreed that a final determination would be issued
within 90 days.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issue raised by the administrative appeal.
This proceeding was commenced on April 19 and July 20, 1990 when
the tenants of 41 apartments in this 80 unit building filed two
complaints alleging a decrease in numerous building-wide services.
The two complaints were consolidated into one proceeding and copies
were sent to the owner on June 13, 1990 and July 31, 1990.
FF 630188-RO
In answers dated July 2, 1990, and August 17, 1990, the owner
contended that all conditions complained of had been repaired or
did not require repair. The owner also stated that several tenants
had advised that they signed the complaint without knowing what
they were signing and now wish to withdraw their complaint.
A physical inspection by DHCR of the subject premises revealed that
of the conditions complained of by the tenants 18 were confirmed
and 37 were not.
Based on the results of the physical inspection, the Administrator
issued the order appealed herein.
In the petition for administrative review, the owner asserts that
the issuance of the rent reduction order violated DHCR policy to
hold in abeyance the determination of a service complaint pending
the outcome of a harassment complaint. The owner contends that the
Division's Enforcement Unit granted the owner time to correct
building-wide deficient conditions, and that that time had not
expired before the rent reduction order was issued. The owner also
alleges that the rent was improperly reduced for some tenants who
did not join in the complaint, and that the owner was denied due
process by not being notified of the inspection and given an
opportunity to be present and by not being sent a copy of the
inspection report.
Of the conditions found to be in need of repair, the owner alleges
that all were either de minimis, or in the process of being
repaired. Regarding each item, the owner stated that the public
area windows were to be replaced in May 1991 during warmer weather,
the concrete driveway was repaired in spring or Fall 1990 and any
cracks reported by the inspector are de minimis, all garage items
were the subject of an agreement with the Enforcement Unit in which
extensions of time to make repairs were granted, the steel floor
plate on the garage floor was repaired on March 14, 1991, an
estimate for repair of the outside parking deck has been obtained
and work will be commenced when weather permits, a master TV
antenna was installed in July 1990 and is operational, the roof
bulkheads were repaired by the owner's own workers, the ceiling
escutcheon plate for the steam pipe was replaced, the garage
sprinkler head was inspected by the Fire Department and no
violation was cited, the garage exhaust fan was repaired on
September 4, 1990, the bricks around the garage door were repaired
on August 20, 1990, and the sunken court pavement would be repaired
in the springtime. Supporting documents such as estimates,
invoices, contracts and paid bills were included with the petition
to substantiate some of the allegations in the petition.
FF 630188-RO
In answer to the petition, the tenants dispute the owner's state-
ment that the pending enforcement proceeding precluded issuance of
a rent reduction order. The tenants assert that a harassment
complaint and a failure to maintain services complaint are entirely
different proceedings for which different considerations and
penalties apply. The tenants further note that 41 tenants signed
the services complaint while only 4 tenants joined in the harass-
ment complaint. To hold the services complaint in abeyance while
the harassment proceeding was pending would violate the rights of
the other 37 tenants.
As for the agreement between the owner and the Enforcement Unit
regarding a timetable for repairs, the tenants assert that this
agreement is not relevant to the rent reduction proceeding and, in
any case, the owner repeatedly missed every deadline.
Responding to other matters raised in the petition, the tenants
state that they are not aware of the erroneous inclusion of any
tenants as affected parties, that there is no DHCR policy requiring
advance notification of an inspection or notice to an owner of the
results of an inspection with an opportunity to repair before a
rent reduction is issued, that the fact that many items were
repaired does not mean that a rent reduction is not warranted for
the remaining items, that the evidence submitted by the owner
establishes that many conditions were not in fact under repair,
that there is no exception for de minimis conditions, that many of
the conditions cited in the rent reduction order were not the
subject of the harassment proceeding and that ongoing repairs do
not bar a rent reduction.
As for the individual items, the tenants assert that:
1. The owner has submitted only a nonbinding
letter of intent regarding the hallway windows
which were not finally installed until July
1991,
2. The north yard driveway was found by the
inspector to have not been repaired on August
3, 1990,
3. The garage items warrant a rent reduction even
if they were the subject of an agreement with
Enforcement,
4. The date for repairing the outside parking
deck is three months after the inspection
date.
5. A new master antenna was installed in July
1990 but has not been connected because the
FF 630188-RO
owner wants to charge each tenant $55.00.
6. The roof bulkheads and ceiling escutcheon
plate were repaired after the August 31, 1990
inspection,
7. The garage sprinkler head was found to be
defective by two different DHCR inspectors.
8. The garage exhaust fan was not repaired by the
owner's own admission until September 4, 1990
and was again found to be inoperative in an
inspection by the Enforcement Unit on October
22, 1990.
9. The bricks at the garage door were found to be
unrepaired on the October 22, 1990 enforcement
inspection.
10. Owner admits that sunken court pavement was
not repaired when order was issued.
On December 8, 1992, the tenant representative submitted 24
identical affidavits by tenants stating that each apartment had an
antenna jack from the time of initial occupancy until it was
recently disrupted by the owner, forcing the tenants to pay for
cable television at a cost of $150.00 per year.
After careful consideration of the evidence of record, the
Commissioner is of the opinion that the petition should be denied.
Section 2523.4 of the Rent Stabilization Code requires DHCR to
order a rent reduction, upon application by a tenant, where it is
found that the owner has failed to maintain required services.
Required services are defined by Section 2520.6(r) to include that
space and those services which the owner was maintaining or was
required to maintain on the applicable base date, plus any addi-
tional space or services provided or required to be provided
thereafter by applicable law.
The record in the instant case adequately supports the Adminis-
trator's determination that there has been a failure to maintain
required services for which a rent reduction is warranted.
The owner's argument that it was improper for the Administrator to
issue a rent reduction order while a harassment proceeding was
pending is without merit. There is no such policy mandating a
moratorium of the processing of services complaint until a harass-
FF 630188-RO
ment proceeding is resolved. In fact, the determinations made in
services proceedings are often relevant to the processing of a
harassment complaint. Any agreement between the Enforcement Unit
and the owner regarding a schedule for repairs does not preclude
issuance of a rent reduction order before the agreed upon deadline
has expired. The tenants were not parties to such an agreement and
indeed many who joined in the services complaints did not join in
the harassment complaint. Those who did not join cannot have their
entitlement to a rent reduction denied or delayed by the few who
did. The considerations and penalties concerning the two proceed-
ings are entirely different and are unrelated.
The owner's other arguments are also without merit. There is no
due process requirement mandating notification of a scheduled
inspection or of the results of such inspection. Service of the
complaint on the owner affords sufficient notice of the conditions
requiring repair.
As for the individual items, the owner's assertions that some are
de minimus or that repairs were in progress, even if true, do not
establish that the rent reduction order should be either modified
or revoked. None of the conditions cited in the order were
described as minor in the inspection report. If any were minor,
they should have lent themselves to prompt repair. Moreover, there
are so many other items that are most certainly not de minimis such
that a rent reduction would be warranted anyway. The inspector did
not report any repairs in progress. The owner's statement that
certain repairs could not be undertaken until warmer weather
arrived is not convincing given the fact that the complaints were
filed in April and July 1990 when any repairs to outside areas
could have been completed before cold weather arrived and well
before the order was issued. It is also noted that the owner did
not submit any evidence to the Administrator regarding repairs that
actually were made and such evidence submitted for the first time
with the petition is beyond the scope of review of this adminis-
trative appeal. The owner had ample time from the filing of the
complaints until the order was issued almost a year later to
complete all repairs and to so notify the Administrator.
The rent reduction order appealed herein is adequately supported by
the evidence of record including the inspection report which
confirmed the existence of numerous conditions listed by the
tenants in their complaints.
THEREFORE, in accordance with the Rent Stabilization 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.
FF 630188-RO
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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