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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.:
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SHEILA MCCORMACK,
TENANT REPRESENTATIVE RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONER FB130153B
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND REMANDING PROCEEDING TO RENT ADMINISTRATOR
On September 16, 1991, the above named petitioner tenant
representative filed a petition for administrative review of an
order issued on August 14, 1991, by a Rent Administrator concerning
the building known as 42-15 43rd Avenue, Sunnyside, New York
wherein the tenants' rent reduction application was denied based
on a finding that the building is operated by a court appointed
receiver but the owner was directed to restore services.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion relevant to the
issues raised by the petition for review.
This proceeding was commenced on February 26, 1991 when 72
tenants of the 154 who reside in the building filed a Statement of
Complaint of Decrease in Building-Wide Services wherein they
alleged various building-wide services deficiencies and requested
a rent reduction.
The complaint was served on the owner who was afforded an
opportunity to respond. A response was filed with the
Administrator on March 15, 1991 by the court-appointed receiver for
the building wherein it was stated, in sum, that the complaint had
been investigated, that some repairs had been made and that other
repairs were being contemplated.
The Administrator did not order a physical inspection of the
premises. Instead, the Administrator issued the order here under
review on August 14, 1991. The Administrator stated that the
building is owned by a receiver and proceeded to order restoration
of services based on the admission of the receiver that the
following services were not being maintained:
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1. Elevator is out of order and does not stop level at
all floors,
2. Exterior light fixture missing from main entrance,
3. Basement storage rooms are unavailable to the
tenants and filled with flammable debris,
4. Center courtyard is buckling causing flooding to
basement and laundry room. Insect infestation due
to flooding,
5. Roof fire alarms are inoperative and door is
unlatched,
6. Incinerator room doors are defective and chutes are
missing,
7. Apartment windows are defective.
The order also stated that the Housing Maintenance Code does not
require regular public area painting but that such painting is
required to do so whenever necessary.
In the petition for administrative review the tenant
representative requests reversal of the Rent Administrator's order
alleging that there exists no legal basis for denying the tenants'
application for rent reductions. The petition was served on the
owner on October 21, 1991.
The owner filed a response on November 8, 1991 and stated that
new elevators have been installed, that proposals for a new roof
and new windows are being solicited, that the owner is making a
good faith effort to correct the conditions complained of and that
it would be unfair to order a rent reduction as such a reduction
would only hamper the owner's efforts. The owner filed an
additional response on November 19, 1991 and enclosed a copy of a
proposal for replacement of the building roof.
After careful consideration the Commissioner is of the opinion
that this petition should be granted and the proceeding should be
remanded to the Administrator for further processing.
The Commissioner finds that there is no basis for excusing a
court appointed receiver from a rent reduction that is otherwise
warranted.
The Rent Stabilization Code [Section 2520.6(i)] defines an
owner as
"A fee owner, lessor, sublessor, assignee, net
lessee or a proprietary lessee . . . or any
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other person or entity receiving or entitled
to receive rent for the use or occupation at
any housing accommodation . . . "
As an entity entitled to receive rent, a Court appointed
receiver is within the definition of an owner.
Similarly, the Rent and Eviction Regulations [Section
2200.2(h)] define a landlord as an;
"owner, lessor, sublessor, assignee
or other person receiving or entitled to
receive rent for the use and occupancy of any
housing accommodation . . .",
a definition that would encompass a receiver.
Based on all of the foregoing it is clear that the
Administrator made an error of law in failing to order a physical
inspection of the building and, instead, ordering restoration of
services based on the fact that the building is owned by a
receiver. The Administrator also erred in deeming the March 15,
1991 letter filed by the receiver as an "admission" of all the
allegations in the complaint. Clearly, the letter disputed some of
these allegations. The Commissioner is therefore of the opinion
that this proceeding must be remanded to the Administrator in order
for a physical inspection of the subject building to be held. The
Commissioner notes that the receiver no longer owns the building.
The Commissioner further notes that a rent reduction for the
elevator condition has been ordered by the Commissioner in Docket
No. FG130299RT. The Administrator may not order an additional rent
reduction based the condition of the elevator. Any rent reduction
so ordered shall apply to any tenant who joined in the filing of
this administrative appeal and shall be effective the first rent
payment date following service of the complaint on the owner.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, and the Rent and Eviction Regulations for New York City,
it is,
ORDERED, that this petition be, and the same hereby is,
granted and that the proceeding be, and the same hereby is,
remanded to the Rent Administrator for further processing.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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