ADM. REVIEW DOCKET NO. FH810196RO
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. FH810196RO
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO. FC910586S
DAVID ASSOCIATES,
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN
PART AND REMANDING PROCEEDING TO THE ADMINISTRATOR
On August 9, 1991, the above-named owner filed a petition for
administrative review of an order issued on August 6, 1991 by a
Rent Administrator concerning the housing accommodation known as
Apartment 6-A, 185 Bronx River Road, Yonkers, New York.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issues raised by the petition for review.
On March 20, 1991 the subject tenant filed an application for
a rent reduction based on the owner's alleged failure to maintain
services, alleging that since December 3, 1990 the subject building
has been without elevator service.
On April 3, 1991, the Division of Housing and Community
Renewal (D.H.C.R.) mailed a copy of the tenant's complaint to the
subject owner.
The owner interposed an answer to the tenant's complaint
wherein it alleged, among other things, that the building's two
elevators were inoperative as a result of a fire; that service to
the building's south elevator was restored on March 21, 1991; that
work is proceeding on the other elevator, and that no rent
reduction is warranted as the interruption of services resulted
from a fire, which constituted a major emergency.
ADM. REVIEW DOCKET NO. FH810196RO
On August 6, 1991 the Administrator issued the order under
review herein finding that a diminution of services had occurred
and reduced the tenant's rent from December 1, 1990 through March
31, 1991, and the Administrator ordered the restoration of the
tenant's rent on April 1, 1991.
In its petition the owner asserts, among other things, that
prior orders of the rent agency have determined that rent
reductions are not warranted for a temporary reduction in services
resulting from an emergency situation where the owner has made a
good faith effort to restore services; that the reduction of
services in this proceeding was as a result of an emergency
situation, and the owner states that even if a rent reduction were
to be determined to have been warranted, "the rent reduction would
be limited to the period after the landlord had received the
tenant's complaint until such time as the landlord had restored
services."
After careful consideration, the Commissioner is of the
opinion that the owner's petition should be granted in part and
that this proceeding should be remanded to the Administrator.
The Commissioner notes that it is a long established policy
followed by the rent agency and the predecessor agency of the
D.H.C.R. in administrating the various statutes providing for the
regulation of housing, that a temporary service reduction resulting
from an emergency situation, where an owner has made a prompt good
faith effort to restore services, will not result in a rent
reduction.
The Commissioner further notes that the owner's answer to the
tenant's complaint stated that work was still proceeding on one of
the building's elevators. As the owner admits that work was still
proceeding on one of the building's elevators, the Commissioner
finds that at the time the owner was served with the tenant's
complaint building services were not fully restored.
As building services were not fully restored at the time the
owner was served with the tenant's complaint, the Commissioner is
of the opinion that the building's service reduction is not a
temporary service reduction as mentioned in the aforementioned
D.H.C.R. policy. The Commissioner finds that the aforementioned
D.H.C.R. policy is not applicable to this proceeding.
The Commissioner notes that the owner was served with a copy
of the tenant's complaint on April 3, 1991. The Commissioner
ADM. REVIEW DOCKET NO. FH810196RO
further notes that the order under review herein ordered the
subject apartment's rent reduced from December 1, 1990 through
March 31, 1991.
To ensure due process, it is established policy of D.H.C.R.
that rent reduction orders, pertaining to premises subject to the
State Tenant Protection Regulations, are to be effective the first
day of the month following the date when the owner was served with
the tenant's complaint.
Accordingly, the Commissioner finds that the Administrator's
order incorrectly reduced the tenant's rent effective from a period
prior to the serving of the tenant's complaint on the owner. The
Commissioner further finds that the Administrator's order should be
revoked, and that the tenant's complaint for a rent reduction due
to a diminution of services should be remanded to the Administrator
for reconsideration.
On remand the Administrator should allow the owner an
opportunity to submit evidence showing that repairs to the
elevators have been completed, and that there is no service
reduction due to lack of elevator service.
If the Administrator should determine that a rent reduction is
warranted in this proceeding, the Commissioner is of the opinion
that the order reducing the tenant's rent should be effective no
earlier than May 1, 1991.
If the owner has already complied with the Administrator's
order under review herein and, as a result of the instant
determination, there are arrears due to the owner from the tenant,
the tenant may pay off the arrears in three equal monthly
installments during the next three months. Should the tenant
vacate after the issuance of this Order, all arrears are due
immediately.
THEREFORE, in accordance with the Emergency Tenant Protection
Act of 1974, and the State Tenant Protection Regulations, it is
ORDERED, that the owner's Petition be, and the same hereby is,
granted in part, and that the Administrator's order be, and the
same hereby is, revoked, and it is
FURTHER ORDERED, that this proceeding be, and the same hereby
is, remanded to the Administrator for the purpose of reconsidering
the tenant's application for a rent reduction based on the owner's
alleged failure to maintain services, in accordance with this order
ADM. REVIEW DOCKET NO. FH810196RO
and opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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