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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.: FI130494RT
SUSAN RODRIGUEZ RENT
JOHN SZEWCZUK ADMINISTRATOR'S DOCKET
NO.: EH130020RP
PETITIONERS
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND MODIFYING RENT ADMINISTRATOR'S ORDER AFTER REOPENING
On September 16, 1991 the above named petitioners-tenants
timely refiled a Petition for Administrative Review (PAR) against
an order of the Rent Administrator issued March 14, 1991 concerning
the housing accommodations located at 82-15 35th Ave., Jackson
Heights, N.Y., wherein the Administrator revoked a prior rent
reduction order issued under Docket No. CJ130109B.
The Commissioner issued an order and opinion on September 14,
1992 granting in part the tenants' petition by reinstating the rent
reduction for all tenants affected by the order issued in CJ130109B
but restoring the rent as of April 1, 1990, based on evidence in
the record that all conditions were corrected by that date. On
October 15, 1992 the owner, represented by counsel, requested
reopening and reconsideration of the Commissioner's September 14,
1992 order and opinion. On November 13, 1992 the Commissioner
granted the owner's request for reconsideration and reopened this
administrative appeal proceeding.
The Commissioner has again reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The order appealed herein revoked a previously issued
building-wide rent reduction order. The rent had been reduced by
$4.00 per month for rent controlled tenants and by a guideline for
rent stabilized tenants based on a finding of peeling paint and
plaster in the basement and bulkhead areas. The owner appealed
that order, arguing that the conditions found were minimal and did
not warrant a rent reduction. The tenants appealed and argued that
the Administrator did not properly investigate their complaints
regarding garbage accumulation, foul odors, vermin infestation,
dirty public areas and a failure to paint the exterior as well as
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interior public areas. A Commissioner's order (DI130210RT and
DJ130388RO) was issued on August 3, 1990 remanding the proceeding
to the Administrator to investigate the various conditions
complained of by the tenants and stating that a rent reduction
would not have been warranted if the only defective condition was
peeling paint and plaster in the basement area and on the bulkhead,
which are areas which tenants do not normally either occupy or have
reason to use.
On remand, the Administrator revoked the rent reduction
finding that no inspection was required because the earlier
inspection had investigated the various items in the tenants'
complaint and found no evidence of defective conditions. A rent
reduction for peeling paint and plaster on the bulkhead and
basement walls was found not to be warranted.
The two petitioner-tenants filed a PAR (Docket No. FD130387RT)
on September 19, 1987 in which they indicated that they were
"Authorized Tenant Representatives". The PAR was rejected by order
and opinion issued on August 8, 1991 for failure to submit written
evidence of authorization to file a PAR as required by Section
2529.1(b)(2) of the Rent Stabilization Code. The tenants were
given 35 days to refile the PAR, correcting the procedural defect.
When the PAR was refiled, the tenants indicated that they were
filing as individual tenants and not as tenant representatives. No
evidence of any authorization to act on behalf of any other tenants
was submitted.
In the petition, the tenants assert the following:
1. The order here under review was arbitrary and
capricious in that the Administrator issued said
order without benefit of an additional inspection.
The rent reduction should not have been revoked
because the peeling paint and plaster was located
in a the laundry room area. Said laundry room was
found to be a required service pursuant to a DHCR
order issued in September, 1986. The tenants argue
that if the laundry room was found to be a required
service, then the area outside it in the basement
is an area frequented by the tenants and peeling
paint and plaster in that area cannot be said to
exist in a non-public area.
2. No inspection has been performed of the interior
hallways, ceilings or stairs despite the
photographic evidence submitted showing unclean and
unsanitary conditions existing.
3. The stripping and cleaning of the floors did not
occur until August, 1990 and the owner did not
offer any evidence of restoration of floor
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maintenance service prior to that date. The
photographic evidence again demonstrates that the
floor areas were not being maintained.
4. The Order and Opinion of the Commissioner which
remanded this proceeding for further investigation
states that the tenants' photographic evidence
"casts doubt on the general correctness of the
instant order." The petitioners state that, based
on this statement of the Commissioner, the
Administrator should have at least ordered an
inspection or required the owner to certify that
services were restored.
The owner filed a response on May 17, 1991. It stated that
the Commissioner's remand order did not command the Administrator
to order an additional inspection but, rather, to reconsider this
matter "by whatever means are found useful". The owner states that
an additional inspection would have been irrelevant, since it would
have been conducted 2 years after the issuance of the original rent
reduction order and 3 years after the filing of the complaint. The
owner stands on the report of the inspector, which was filed after
the May 9, 1989 inspection, with regard to the services found to
have been maintained. Finally, the owner states that any
complaints about the exterior of the building fall outside of the
scope of the complaint and that there have been no building
violations issued by the New York City Departments of Health or
Buildings for foul odors, vermin infestation or lack of
maintenance.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be granted
in part and the order and opinion issued on September 14, 1992
granting the tenants' petition in part should be modified to order
a rent reduction of an amount equal to the most recent guideline
adjustment solely for the two tenants who filed the petition for
administrative review, The rent reduction is to be effective
December 1, 1988 and is restored effective April 1, 1990.
The Commissioner rejects those parts of the tenants' petition
which challenge the order here under review based on the inadequacy
of the physical inspection. The Commissioner's August 3, 1990
order of remand required the Administrator to further investigate
the complaint. It was left to the Administrator to determine this
matter, based on the reasonable exercise of discretion. The
Commissioner finds the Administrator carefully compared the
complaint with the inspector's findings based on those areas of the
building complained of and those inspected. While the tenants
allege that their complaint was intended to include painting of
exterior portions of the building it was not so interpreted by
either the owner or the Administrator. Given the time elapsed it
was a reasonable exercise of discretion not to apply an expansive
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interpretation of the tenants' complaint on remand.
The Commissioner further finds, however, that the
Administrator erred in revoking the order here under review as it
relates to the peeling paint and plaster in the basement area. In
an Order and Opinion issued November 15, 1991 (see Docket No.
AL110439RO et al.) the Commissioner found, among other things, that
the basement laundry room in the subject building is a required
service which the owner must maintain. Therefore, the tenants are
correct in that the area surrounding said laundry room is a public
area which is also required to be maintained. Peeling paint and
plaster in this public area is a reduction in services for which a
rent reduction is warranted.
Moreover, a review of the tenants' original complaint filed on
October 31, 1988 reveals that they alleged that the walls and
ceilings in the common areas required painting. The inspector's
report of peeling paint and plaster in the basement confirmed the
need for interior painting of that area for which a rent reduction
is warranted.
In requesting reconsideration of the Commissioner's order, the
owner asserted for the first time that the peeling paint and
plaster in the basement was in an area where the machinery rooms,
utility rooms, and other locked areas which are off limits to the
tenants are located. The owner also argued that a rent reduction
for this condition is contrary to the Commissioner's prior order
(DI130210RT and DJ130338RO) which remanded the proceedings and
which stated in substance that defective conditions in areas not
used by the tenants do not warrant a rent reduction.
However the subsequent search of the Division's records to
verify the tenants' allegations in the petition that a finding had
previously been made finding a basement laundry room to be a
required service effectively contradicts the owner's position that
the tenants might not have occasion to use the basement. Based on
this finding, a rent reduction was warranted despite the language
in the prior Commissioner's order which did not take notice of this
required service.
While it is true that the inspector did not specifically
identify the location of the peeling paint and plaster, the owner's
assertion for the first time in the reconsideration request that it
was in a nonpublic area is beyond the scope of review of this
administrative appeal. In view of the owner's prior position
rejected by the Commissioner that the basement area was not a
public place, there being no basis for tenant access thereto, the
owner's belated assertion of this position and the improbability
that the inspector would have been able to detect peeling paint and
plaster in a locked area of the basement without specifying it as
such, the Commissioner finds that the peeling paint and plaster
condition existed in public areas of the basement. Moreover,
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evidence submitted by the owner in its appeal of the rent reduction
order established that the entire basement was scraped and painted
in February, 1990.
In an effort to impose an equitable remedy because of the
prejudice to the owner in not having had an opportunity to file a
rent restoration application, the Commissioner sent a Notice of
Opportunity to Present Information to the tenants on July 2, 1992
requesting information as to when the owner had repaired the
basement and area. The Commissioner notes, as stated above, that
the owner alleged that repairs were completed in February, 1990.
The petitioner-tenants filed a response on July 20, 1992, wherein
they stated that the repairs were completed in "the spring of
1990." Therefore, the Commissioner finds that the facts presented
warrant restoration of the rent as of April 1, 1990.
As no other tenants appealed the Administrator's order
revoking the rent reduction, either as individual tenants or as
represented by the petitioners herein and thereby preserving a
right to the remedy awarded in this appeal and based upon all the
facts of this case, including consideration of the equities
involved the Commissioner finds that the rent reduction ordered
herein reduces the rent of only the two petitioners (Rodriguez Apt.
4A and Szewchuk Apt. 3F) by a guideline effective December 1, 1988
and restores the rent effective April 1, 1990.
THEREFORE, pursuant to the Rent Stabilization Law and Code and
Rent and Eviction Regulations it is
ORDERED, that the Commissioner's prior order and opinion
issued on September 14, 1992 be, and the same hereby is superseded
by this order and opinion, 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, modified in accordance with this order
and opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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