FL630042RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
9-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
FL630042RO;
RENT ADMINISTRATOR'S
PIERSON PROPERTY CORP., DOCKET NO.:
DD630092B
PREMISES:
2300 Olinville Ave.,
PETITIONER Bronx, New York
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND REMANDING PROCEEDING ON APPEAL
The above-named owner timely filed a petition for administrative
review of an order issued on November 6, 1991 concerning the
housing accommodations relating to the above-described docket
number wherein the Administrator ordered a rent reduction based on
a finding of a decrease in services.
The issue in this appeal is whether the Administrator's order was
warranted.
The Commissioner has reviewed all the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the petition.
Various rent-stabilized tenants under the aegis of their tenants'
association commenced this proceeding on April 13, 1989 by filing
a complaint asserting that the owner had failed to maintain num-
erous services in the subject building including, but not limited
to, "problems with roof".
On May 15, 1989, the Division sent the owner a copy of the com-
plaint and the owner filed an answer advising that some of the
tenants' signatures were purportedly forged, that required services
FL630042RO
are being provided and maintained, that some of the disrepair had
been caused by the tenants, and otherwise denying the allegations
as set forth in the tenants' complaint.
On November 6, 1989, the Division sent the tenants' association a
copy of the owner's answer and the association's president filed a
response on November 17, 1989 asserting that the complaint had been
fully discussed and debated by the membership before the tenants
signed; and that except for one item, numerous defective conditions
still remain.
Physical inspections of the subject building were conducted on
December 15, 1989, February 9, 1990 and September 19, 1991 by a
Division staff member who confirmed that though many services were
maintained, defective conditions still exist.
On December 15, 1989, the inspector wrote that the building has two
elevators both serving all apartment dwellers, and the west or left
elevator is not running; that none of the elevator floor light
indicators work; that though the roof has been patched in two
places, there is evidence of roof leaks in Apts. #21-F and #21-D,
both having been water-damaged; and that the center light in the
parking lot is not working.
On February 9, 1990, another physical inspection of the subject
building was conducted by a Division staff member who reported that
there was evidence of rook leaks in Apt. 21-C and water damages
above the south window; and that there is evidence of roof leaks in
the top floor, the 21st floor where the ceiling west of the
elevators is water-stained.
On September 19, 1991, the inspector reported that the roof is in
a poor condition with soft spots and blisters in various places;
that the 21st floor ceiling west of the elevators is water-damaged;
and that there is evidence of roof leaks in the kitchen and bath of
Apt. 21-D and east of the bedroom ceiling of Apt. 21-B.
Based on these inspections, the Administrator determined that the
roof is defective and that there is evidence of water damage to the
ceilings of the public area on the 21st floor. The Administrator
directed restoration of services and further ordered a reduction of
the stabilized rents retroactive to June 1, 1989 to the level of
rent in effect prior to the last rent guidelines increase.
In this petition, the owner contends in substance that the com-
plained of conditions had not been brought to the attention of the
owner or its agent both "in person" and "by phone" as asserted in
the tenants' complaint; that the Administrator made no reference to
the alleged fraud or impropriety of the tenants' signatures, as
FL630042RO
raised by the owner in the proceeding below; that the rent reduc-
tion for all tenants is "draconian" when there was only one
defective condition and all other services were being maintained by
the owner; that the finding of a defective roof and water damage to
the ceilings of the public area on the 21st floor is ambiguous and
does not appear to be a building-wide defect; that this finding,
which is normal maintenance and may already have been repaired by
the owner, was not complained of in the tenants' complaint; and
that the extensive rent reduction effective June 1, 1989 is a
windfall to the tenants.
The owner cited Commissioner's orders holding that inspection
reports not based on the tenants' complaint are improper; that the
Administrator erred in failing to examine irregularities regarding
signatures and the owner's repair of all complained of conditions,
except for one item of ordinary maintenance not stated in the
tenants' complaint; and that the Division's inspections are
nebulous and questionable findings of fact to confirm the tenants'
allegations in the complaint because the owner may already have
remedied this situation which probably recurred.
On February 24, 1993, a copy of the owner's petition was mailed to
the tenants who did not file an answer.
The Commissioner is of the opinion that the owner's petition should
be granted in part to the extent of remanding this proceeding to
the Administrator for a hearing if necessary on the issue of fraud
and forgery of some tenants' signatures in the complaint. However,
the Commissioner affirms in all respects the Administrator's
finding of decreased services, which was properly based on an on-
site inspection.
Section 2523.4 of the Rent Stabilization Code requires the Division
to reduce the legal regulated rent, upon application by the tenant,
for the period for which it is found that the owner has failed to
maintain required services. Required services are defined by Sec-
tion 2520.6(r) to include repair and maintenance.
A review of the evidence of record shows that the Administrator
based his determination on the entire record, including the results
of the Division's December 15, 1989, February 9, 1990 and September
19, 1991 inspection reports which consistently identified and
corroborated the tenants' claims in the complaint. Therefore, the
Commissioner finds that the Administrator correctly determined that
the owner had failed to maintain services and properly reduced the
tenants' rent.
However, the Commissioner finds that the Administrator failed to
process the owner's contention that some of the tenant's signatures
were forged. Although the owner merely asserted the allegation of
fraud and forgery and the tenants did dispute this issue, there is
FL630042RO
nothing in the record to establish that the Administrator investi-
gated this issue nor does the order address same. Accordingly, the
Commissioner remands this proceeding to the Administrator for a
hearing if necessary on the issue of fraud and forgery of some
tenants' signatures.
The claim that the order appealed from violates precedents holding
that the inspection reports should be based on the tenants'com-
plaint does not apply to this case. In all three inspection
reports, the Commissioner finds confirmation of "problems with
roof" as set forth in the tenants' complaint.
The assertion that this condition of normal maintenance had not
been brought to the attention of the owner or its agent both "in
person" and "by phone" does not establish error. The record
discloses that the Division forwarded the tenants' complaint to the
owner on May 15, 1989, affording the owner notice of the conditions
cited in the order. As such, the owner had thirty (30) months to
make repairs prior to the issuance of the order. In addition, if
this condition is of normal maintenance, such item would have been
corrected within this time span.
The contention that the Administrator's determination concerning
the roof and water damage is nebulous, questionable, and not based
on the tenants' complaint is without merit. As set forth above,
the Commissioner finds that the inspection reports verify the
tenants' complaint. The Commissioner further finds that the
finding of "defective roof" and "evidence of water damage to the
ceilings of the public area on the 21st floor" is unambiguous,
certain and sufficiently specific on what repairs the owner ought
to do.
The further assertion that the owner may already have remedied this
situation which probably recurred was not substantiated in the
proceeding before the Administrator and therefore fails to refute
the inspections' findings to the contrary. If conditions did recur
during the proceedings under review between the owner's receipt of
the tenants' complaint and the inspections, such frequency of
recurrence should put the owner on notice either to increase the
instances of or to shorten the intervals between normal mainte-
nance, or to find another more permanent solution.
The claim that the water damage is merely on the 21st floor and not
a building-wide decreased service are without merit. All three
inspections at various times indicate a defective roof, and the
finding of water damage on the 21st floor is merely a visible evi-
dence of the roof's deterioration, which affects all the tenants in
the building.
FL630042RO
The further contention that the Administrator erred in failing to
examine the owner's substantial repairs of the items in the
tenant's complaint is without merit. The Commissioner finds that
after a careful review of the record, the on-site inspection re-
ports about a defective roof and water damage to the ceilings of
the 21st floor public area contradict any allegation of substan-
tial repairs. In addition, the tenants disputed this contention by
filing a response on November 17, 1989 asserting that except for
one item, numerous defective conditions still remain.
In a rent-stabilized building, as in this case, the owner has to
address the tenants' complaint completely and effectively in-
cluding, but not limited to, a defective roof and water damage.
Here, the owner offered no reason to disturb the Administrator's
order which is based on three inspections consistently finding
decreased services, warranting a rent reduction.
The Administrator's order directing the rent reduction effective
June 1, 1989 is correct, because this is the month following the
owner's being served the tenants' complaint, i.e. on May 15, 1989.
A search of the Division's records shows that the owner has not
filed any application to restore rent based on the restoration of
services. The owner is advised to restore services and accordingly
file a rent restoration application based upon the restoration of
the services in question.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is,
ORDERED, that this petition, and the same hereby is, granted to the
extent of remanding this proceeding to the Administrator for a
hearing if necessary to address the issue of fraud and forgery of
some tenants' signatures in the complaint. However, the Adminis-
trator's finding as to decreased services is affirmed and the rent
reduction ordered by the Administrator remains in effect until a
new order is issued pursuant to the remand.
ISSUED:
FL630042RO
JOSEPH A. D'AGOSTA
Deputy Commissioner
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