GH610125RO et al.
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 S.J.R. NO.: 6836 Mandamus
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.:
GH610125RO; GK610068RO;
GI610124RO; GI610151RO
MULTIVERSE REAL ESTATE INC.,
RENT ADMINISTRATOR'S
DOCKET NOS.:
FH610005S; GA610355S;
FG610948S; FC610957S
PREMISES
----------------------------------x
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
On August 20, 1992, November 6, 1992, September 23, 1992 and
September 15,1992, the above-named petitioner-owner filed petitions
for administrative review (PAR) of orders issued respectively on
July 20, 1992, October 9, 1992, September 22, 1992 and September 1,
1992, by the Rent Administrator, concerning the housing accommo-
dation known as 1064 Carroll Place, Bronx, New York, various
apartments, wherein the Administrator determined that the rent for
the subject apartments should be reduced to the level in effect
prior to the last rent guideline increase which commenced before
the effective date of the orders based upon a diminution of various
services. The Rent Administrator's orders were based upon the
findings of inspections respectively held on July 9, 1992, August
27, 1992, and August 7, 1992.
Subsequent thereto, the petitioner filed a petition in the Supreme
Court in the nature of mandamus pursuant to Article 78 of the Civil
Practice Law and Rules. The Court directed the Division to expedi-
tiously issue a determination of the petitioner's administrative
appeals.
The Commissioner has consolidated these four petitions as they
involve common questions of law and fact.
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 administrative appeals.
The issue herein is whether the Rent Administrator properly reduced
the rent of apartments 3-C, 2-F, 5-A and 2-J in the subject
GH610125RO et al.
building based upon a diminution in services.
On appeal, the petitioner-owner essentially alleged in PAR Docket
No. GH610125RO that exterminating service is under a monthly
service contract; that a sign is posted in the lobby advising all
tenants that the service is provided on the last Tuesday of each
month; that the tenant of Apartment 3-C signed off that the service
was performed and that the tenant was provided with a replacement
refrigerator (also signed-off by the tenant) which obviates the
tenant's complaint about defective refrigerator shelves.
As to PAR Docket No. GK610068RO, the owner averred in substance
that all necessary repairs were completed for the tenant of
Apartment 2-F.
In PAR Docket NO. GI610124RO, the owner contended among other
things that a court stipulation, dated June 17, 1991, before Hon.
Gilbert Badillo, Civil Court, Bronx County, New York, Index No. HP
877/91 is proof that all relevant violations have been corrected
and that sign-offs by the tenant of Apartment 5-A establish that
exterminator and other services were provided.
In the last PAR, under Docket No. GI610151RO, the owner claimed
that numerous repairs were made but that the tenant of Apartment
2-J refused to sign off on the work order and refused access for
the remaining repairs. It was also alleged that a court stipu-
lation, dated June 4, 1991, before Hon. Judge Sherman, Civil Court,
Bronx County, Index Number 68623/91 is proof that all relevant
violations have been corrected.
The petitions were respectively served on the tenants on September
1, 1992, December 4, 1992, October 8, 1992 and October 9, 1992.
After a careful consideration of the entire evidence of record the
Commissioner is of the opinion that the administrative appeals
should be denied.
Section 2523.4 of the Rent Stabilization Code requires the DHCR to
order a rent reduction upon application by a tenant where it is
found that the owner has failed to maintain required services.
Required services are defined by Section 2520.6(r) to include
repairs and maintenance.
Referring to PAR Docket No. GH610125RO, the Commissioner notes that
the owner's claim that exterminator and refrigerator shelf services
were provided and that the subject tenant signed-off on same does
not address the main issue: whether these services were provided
before the issuance of the Rent Administrator's order
A review of the file shows that although the owner subsequently
provided these two services; at the time of the inspection held on
July 9, 1992, the aforesaid services had not been provided by the
owner. The sign-off receipt from the Best-Way Exterminating
GH610125RO et al.
Company submitted by the owner on appeal is dated July 28, 1992,
eight days after the issuance of the appealed order. Also, the
receipt for the refrigerator is dated August 18, 1992 which is
subsequent to the order.
The Commissioner has also considered the owner's claim on appeal,
under Docket No. GK610068RO, that all necessary repairs were com-
pleted and rejects same.
The record indisputably shows that at the time of inspection, held
on August 27, 1992, necessary repairs were wanting. Although
several services were found to be maintained; others such as the
lower window sash in the kitchen, the living room right window
lower sash and the shower regulator were found to be defective.
As to the appeals filed under Docket Nos. GI610124RO and
GI610151RO, the Commissioner has carefully considered the owner's
claim that many repairs had been corrected and that stipulations
entered into by the parties in separate Civil Court actions prove
that all relevant violations have been removed and rejects this
argument.
The fact that the court stipulations referred to in the owner's
appeals indicate that numerous violations had been removed in
earlier proceedings does not establish that the Rent Administrator
erred in determining that the rent for the subject apartments
should be reduced based on the owner's failure to provide various
services. Inspections separately held on August 7, 1992 in apart-
ments 5-A and 2-J determined that apartment 5-A had deficient
plumbing in the kitchen sink; that the oven was working improperly;
that the refrigerator freezer temperature was deficient; that the
refrigerator's general condition was inadequate; that the apartment
entry door lock was loose and that there was evidence of vermin in
several areas of the apartment.
The inspection held on August 7, 1992, in apartment 2-J established
that the kitchen area had leaks and stains; that the ceiling over
the kitchen sink was cracked; that the tub faucet plumbing was
defective; that the floor tile was cracked in the bathroom; that
the wall tiles in the bathroom were loose; that the plumbing in the
bathroom tub was defective and that the paint and plaster in the
dining room was stained due to a leak.
There is no indication that the violations referred to in the Court
proceedings pertained to the same conditions that are the subject
of the complaints filed with the Division. The Commissioner also
finds that the foregoing services and repairs are services and
repairs that must be provided on an on-going basis and may
deteriorate at anytime which, if confirmed by an agency inspection,
would warrant a rent reduction, despite an earlier determination
that the service was being provided.
BI 230194-RO
Lastly, the Commissioner has reviewed the owner's claim on appeal
that the tenant of apartment 2-J has refused access for follow-up
repairs and can not find any support for this contention in the
file. Although the access issue was raised in the separate Civil
Court action, the file contains ample evidence that the owner had
gained access to the subject apartment to make repairs and that, in
fact, many repairs were made. The owner failed to adduce any
evidence that the tenant refused access to the owner to complete
the repair work; nor did it raise the "no access" issue below in
the subject administrative proceeding.
The Commissioner notes that even if the owner could produce
evidence of the tenant's refusal to provide access, it would be
precluded, under the "scope of review" doctrine from offering this
evidence for the first time on appeal, having failed to raise the
issue below.
The owner's answer to the complaint, dated June 6, 1991, made no
mention of an access issue and in fact alleged that all repairs
were done.
The Commissioner finds that based on the on-site physical inspec-
tions which confirmed the tenants' service complaints, the
Administrator was mandated pursuant to Section 2523.4(a) to reduce
the rent upon determining that the owner had failed to maintain
services.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that these petitions be, and the same hereby are, denied
and the Rent Administrator's orders be, and the same hereby are,
affirmed.
Upon a restoration of services, the owner may separately apply for
rent restorations.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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