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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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JOHN SQUIRE,
AS MANAGING AGENT FOR RENT ADMINISTRATOR'S
LINCOLN SAVINGS BANK, DOCKET NO.:
EH230029B
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a Petition for Administrative Review
(PAR) of an order issued on February 19, 1991, concerning the
housing accommodation known as 500 Washington Avenue, Brooklyn,
New York, wherein the Rent Administrator determined the tenants'
complaint of decreased building-wide services.
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.
The tenants commenced this proceeding by filing a complaint
asserting that the owner had failed to maintain certain services in
the subject building. The complaint was served on the owner of
record who advised that he was the Court appointed Receiver in
foreclosure, and that the property had been auctioned to a new
owner subject to a final accounting. It was noted that the
Receiver had met with the new owner and advised him of repairs
which were necessary. It was also asserted that all the conditions
cited had "been taken care of by the Receiver during the course of
Receivership", but otherwise states that the "Receiver only makes
the actual necessary repairs".
Thereafter, the Division of Housing and Community Renewal (DHCR)
conducted an inspection of the subject building. The DHCR
inspection revealed the following:
1. Lock missing from vestibule door.
2. Ladder missing from the fire escape at back of
building.
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3. Back and side fire escapes that were rusty.
4. Peeling paint and plaster on the fifth and
sixth floor ceilings.
5. Public area window panes cracked and frames
damaged.
6. Roach infestation in the basement.
7. Front sidewalk cracked and a trip hazard.
8. Light bulb in lobby missing.
9. Dirty public areas.
10. Dirty backyard.
11. Leak in basement ceiling.
12. Exterior brick wall in need of pointing.
13. Inoperative elevator.
Notice of the results of the inspection were served on the new
owner of record, as supplied by the Receiver. The new owner was
requested to submit evidence of repairs, but there is no evidence
in the record that the new owner did so.
Based on the results of the inspection, the Rent Administrator
issued an order that directed the new owner to restore the services
and further ordered a reduction of the stabilized and controlled
rents.
In the petition for administrative review, the owner asserts that
repairs are made promptly and that all maintenance services are
adequate. The owner also contends that some conditions are due to
tenant carelessness and rampant vandalism. The owner claims that
exterior and interior public areas are cleaned three times a week.
The owner asserts that the inoperative elevator condition was
corrected later in the day after the inspection and that periodic
elevator maintenance is provided by elevator contractor. In
support, the owner submits paid monthly elevator maintenance
service bills.
The owner also argues that certain conditions for which rent
reductions have been granted have little or no adverse effect on
some tenants. In this category the owner includes the basement
ceiling leak and the inoperative elevator insofar as it pertains to
first floor tenants.
The owner also asserts that the rent reduction for the missing
lobby light bulb was excessive and that the owner is not able to
prevent its removal "primarily by the tenants".
Further, the owner disputes the Rent Administrator's determination
that the exterior brick wall required pointing. The owner contends
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that the finding fails to sufficiently identify the affected wall,
and fails to point to any evidence that interior wall damage ensued
or that any tenants were adversely affected.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
Pursuant to Section 2523.4 of the Rent Stabilization Code, DHCR is
required to order a rent reduction, upon application by tenant,
where it is found that an owner has failed to maintain required
services.
Pursuant to Section 2202.16 of the Rent and Eviction Regulations,
the DHCR may order a rent reduction where it is found that the
owner has failed to maintain essential services or space,
furniture, furnishings or equipment provided on the base date or
thereafter. Essential services may include, but are not limited
to: repairs, painting and maintenance.
The tenants' complaint detailed the conditions that the tenants
sought to have corrected. An inspection of the subject premises by
the DHCR inspector confirmed several specific conditions listed in
the tenants' complaint. The inspector's report of the conditions
observed allowed the Rent Administrator to determine that the owner
was not maintaining required or essential services for which rent
reductions were warranted, imposed in accordance with the
Division's normal practices, affirmed by the Courts. Hyde Park
Gardens vs. DHCR, 140 A.D.2d 351, 527 N.Y.S.2d 841 (2nd Dept.
1988), affd. 73 N.Y.2d 998, 541 N.Y.S.2d 345 (1989).
That part of the inspector's report setting forth that the "brick
wall needs pointing" sufficiently identified and detailed damage on
the outside of the building giving the owner notice of defects
requiring attention.
The owner's petition does not establish any basis for modifying or
revoking the Rent Administrator's order which determined that the
owner was not maintaining required or essential services.
The owner's unsupported allegations that some conditions were
tenant induced or they were the result of vandalism ignores, and
does not abate, the owner's responsibility to make prompt repairs.
The Commissioner further notes that an administrative appeal is
strictly limited to a consideration of the issues and evidence
presented to the Rent Administrator for consideration, and not to
consider new evidence or issues which are beyond the scope of
review.
The owner may file a rent restoration application if the facts so
warrant.
The automatic stay of the retroactive rent reduction for rent
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stabilized tenants that resulted by the filing of this petition is
vacated upon issuance of this Order and Opinion.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
and the Rent and Eviction Law and Regulations, it is
ORDERED, that this petition be, and the same hereby is, denied and
the Rent Administrator's order be and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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