FH130169RO
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.:
FH130169RO
JAIME ASSOCIATES,
RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONER DH130016B
----------------------------------x
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART
On August 19, 1991, the above-named petitioner-owner filed a
petition for administrative review against an order issued on
August 5, 1991, by a Rent Administrator concerning the housing
accommodation known as 102-30 Queens Boulevard, Forest Hills,
New York wherein the Administrator determined that certain services
were not being provided or maintained.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion relevant to the issue raised
by the administrative appeal.
This proceeding was commenced on August 25, 1989 when forty (40)
tenants joined in a building-wide complaint in which they re-
quested a rent reduction based on numerous conditions that they
asserted required repair.
The owner answered the complaint and stated in substance that it
had purchased the building on December 1, 1989 and in eight months
expended over $250,000 in renovations. They addressed each item in
the tenants' complaint and claimed that all services were being
maintained and that the real issue here is that the building is
being converted into cooperatives and certain tenants are
attempting to blackmail the owner into offering more favorable
terms and conditions for the purchase of apartments. The owner
alleged that tenants signed the supplemental signature sheet
without knowing what they were signing. The owner submitted copies
of letters showing that there are two tenants' associations in the
building competing against each other and that the complaint filed
with the DHCR was prepared by a splinter group whose goal is to
FH130169RO
discourage the purchase of apartments.
A physical inspection of the building by a DHCR inspector took
place on March 27, 1990. The inspector reported that:
1. Incinerator room floors are stained and dirty.
2. Stairway doors do not fully close, need to be
adjusted.
3. Vents are not functioning adequately on some floors
and are inoperative on others.
4. Garage is inadequately lit.
5. Elevators do not stop level on all floors.
6. Bulkhead walls and ceiling on both sides of subject
premises have peeling paint and plaster.
7. Laundry room's bottom left window sash has a
defective lock.
The owner was notified of the results of the inspection on May 10,
1990 and was directed to submit within 20 days documentation that
repairs have been made. On May 30, 1990, the owner reported that
all seven items had been corrected.
A second inspection took place on July 23, 1990 which revealed that
various hallway floor vents were inoperative on the A-H side and
were working very slowly on the J-S side. The elevators were found
to not stop level with the floors and the laundry room window was
found to be nailed shut.
A third inspection on October 9, 1990 again found the public area
vents inoperative on the A-H side but working on the J-S side, the
elevators stopped between 1/2" to 2 1/2" below the floors on some
floors.
The Administrator's order, appealed herein, reduced the rents
effective October 1, 1989 for all rent stabilized tenants who
joined in the complaint based on the following conditions:
1. The public area vents, from the lobby to the sixth
floor, on the A-H wing of the building are
inoperative.
2. The elevator on the J-S wing of the building stops
two inches above the sixth floor. The elevator on
the A-H wing of the building stops two and a half
inches below the sixth floor, two inches below the
second floor, and one and a half inches below the
first floor.
3. The laundry room window has been nailed shut.
Other conditions were found to have been corrected, and the tenants
were advised to contact the New York City Office of Code
FH130169RO
Enforcement for the noisy fuel pump and piping system, the
availability of someone twenty four hours a day on a emergency
basis, and inadequate exterior lighting.
In the petition for administrative review, the owner asserts that
it was deprived of due process of law because it was not served
with a copy of the complaint and had no knowledge of the proceeding
until it received a copy of the Administrator's order.
The owner also argues that in accordance with DHCR procedures it
should have been served with a copy of the inspection report and
given an opportunity to respond to the three remaining items found
to be in need of repair. The owner contends that the laundry room
window was not nailed shut and is at most a de minimis condition,
that the public area vents are operative, and that the elevator is
under contract with a maintenance company and any levelling
problems are corrected immediately. The owner also asserts that
tenants in the J-S wing should not get the benefit of a rent
reduction for inoperative vents in the A-H wing.
The petitioner explains that the subject building is a condomin-
ium and that as owner of the rent stabilized apartments, the
petitioner cannot make repairs to public area items and therefore
should not be penalized for the alleged defects.
Finally, the owner argues that the items for which the rent was
reduced were not included in the complaint, that not all tenants
who signed the complaint knew what they were signing, and that some
of the signatures were invalid since the tenants moved out before
the complaint was filed.
Included with the petition were two photographs of the laundry room
window - one showing it closed with a locking mechanism and the
other showing it open, a statement from a home improvement company
attesting that the public area vents were inspected on August 12,
1991 and found to be in "perfect operative condition", and a
statement from the elevator maintenance company that the
elevator in the subject building is a single speed type which has
no provision for automatic levelling correction and which the
Building Code allows for up to a three inch zone between the floor
landing and the car floor. The Commissioner notes that the
petition was served on the tenants on October 7, 1991.
After careful consideration of the evidence of record, the
Commissioner is of the opinion that the petition should be granted
in part.
The owner's due process arguments are without merit since the
record indicates that the owner answered the tenants' complaint,
addressing in detail each item listed therein. Also, contrary to
the owner's assertions, the results of the March 27, 1990 inspec-
FH130169RO
tion were served on the owner, who responded that all items had
been corrected.
The owner has not established, beyond the bare allegations, that
any tenants who joined in the complaint were unaware of what they
were signing or that any vacated before the complaint was filed.
The assertion that some tenants organized the preparation and
signing of the complaint in order to defeat the conversion plan,
even if true, does not affect the validity of the complaint or
establish that any tenant did not know what they were signing. In
fact, one of the letters the owner submitted refers to a meeting
one of the tenants groups held to explain the complaint to tenants.
The status of the subject building as a condominium does not
relieve the petitioner of the consequences of a finding that
required services in public areas are not being maintained.
Pursuant to Section 2520.6 of the Rent Stabilization Code, the
definition of an owner includes "an owner of a condominium unit",
and the definition of required services is "that space and those
services which the owner was maintaining or was required to
maintain on the applicable base date . . .". As the Division has
consistently held, a cooperative or condominium owner is respon-
sible for taking whatever steps are necessary to assure that
defective conditions in public areas are corrected and the failure
to do so warrants a rent reduction for all stabilized tenants who
joined in the complaint.
With respect to the laundry room window, the tenants' complaint
stated that the window does not lock, giving access to the
building. The inspection on March 27, 1990, the results of which
were sent to the owner, confirmed that the bottom left window sash
in the laundry room had a defective lock. The owner advised the
Administrator on May 30, 1990 that the condition had been repaired.
A subsequent inspection on July 23, 1990 revealed that the window
had been nailed shut. The Commissioner is of the opinion that
since the tenants' complaint alleged a condition describing a
window that permitted intruders to enter the building through the
laundry room, the inspector's report that the window had been
nailed shut confirmed that the owner had corrected the condition
complained of. It was, therefore, error for the Administrator to
include "The laundry room window has been nailed shut" as an item
warranting a rent reduction and the order appealed herein is
modified to delete this item.
As for the defective vents, a review of the record reveals that the
tenants clearly included in the complaint the statement that the
vents in the halls are not working. In fact, the owner responded
to this item by stating that the "vents are working - one motor is
being replaced." Three inspections revealed that the vents in the
A-H Wing were not working and the Administrator properly relied on
FH130169RO
the observations of the Division's impartial and disinterested
inspector in ordering a rent reduction for this condition. The
owner's contention that a home improvement company inspected the
vents on August 12, 1991 and found them to be in working order does
not establish that necessary repairs were made before the
Administrator's order was issued. No evidence was submitted to the
Administrator to rebut the results of the three inspections which
revealed that the vents were not working. The Commissioner finds,
however, that only the tenants who occupy apartments in the A-H
Wing are entitled to a rent reduction because only those tenants
have been deprived of a required service.
With regard to the issue of the elevator levelling, the
Commissioner acknowledges that enforcement of applicable standards
regarding elevator operation and safety is under the jurisdiction
of the New York City Department of Buildings, which has long-
established, comprehensive procedures and inspection programs in
place. The staff engaged in carrying out these programs has the
necessary technical expertise to conduct periodic inspections; to
interpret and apply relevant codes, regulations and industry
standards; and to issue violations. Further, in view of the City's
greater experience with elevator enforcement, the City is in a
better position than DHCR to determine appropriate performance
standards and ancillary equipment for elevators of varying age and
manufacture.
The Commissioner notes that the Department of Buildings inspected
the elevators on April 4, 1990, November 23, 1990 and September 23,
1991. No violations regarding elevator operation were issued.
Therefore, the Commissioner finds that sufficient evidence does not
exist to support the Administrator's finding regarding the
elevator. That finding must, therefore, be revoked.
Pursuant to all of the foregoing, the Commissioner grants the
instant petition in part and revokes that portion of the
Administrator's order which premised the rent reduction on the
elevator levelling problems and the laundry room window. The rent
reduction is also revoked for the defective vents for all tenants
other than those residing in the A-H Wing.
The Commissioner notes that the owner filed for rent restoration
and that the application was granted on February 25, 1993 (Docket
No. FI130155OR).
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, granted in
part and the Administrator's order be, and the same hereby is,
modified to order a rent reduction for defective vents in the A-H
Wing for those complaining tenants who reside in that wing. Any
rent arrears due to the owner as a result of this order by tenants
FH130169RO
not residing in the A-H Wing may be paid off in twelve (12) equal
monthly installments.
ISSUED:
JOSEPH A. D'AGOSTA
DEPUTY COMMISSIONER
|
