ADM. REVIEW DOCKET NO. FH830195RO
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
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. FH830195RO
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO. FB930003B
DAVID ASSOCIATES,
PETITIONER
------------------------------------X
ORDER AND OPINION TERMINATING PROCEEDING AS TO
APARTMENTS 8F AND 8N; AS TO THE OTHER
APARTMENTS IN THIS PROCEEDING, ORDER AND OPINION
GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND REMANDING PROCEEDING TO THE
ADMINISTRATOR
On August 9, 1991, the above-named owner filed a petition for
administrative review of an order issued on August 5, 1991 by a
Rent Administrator concerning various housing accommodations in the
premises known as 185 Bronx River Road, Yonkers, New York.
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 for review.
In January, 1991, various tenants filed an application for a
rent reduction based on the owner's alleged failure to maintain
services. In their application the tenants alleged that since
December, 1990 the subject building had been without elevator
service.
On February 21, 1991, the Division of Housing and Community
Renewal (D.H.C.R.) mailed a copy of the tenants' complaints to the
owner.
ADM. REVIEW DOCKET NO. FH830195RO
On March 13, 1991, the owner interposed an answer to the
tenants' complaints wherein it alleged, among other things, that
the building's two elevators were inoperative as a result of a
fire; that elevator service is expected to be restored within one
week of the above-mentioned date, and that no rent reduction is
warranted as the interruption of services resulted from a fire
which constituted a major emergency.
On August 5, 1991, the Administrator issued the order under
review herein finding that a diminution of service had occurred and
reduced the subject tenants' rents from December 1, 1990 through
March 31, 1991. In addition, the Administrator ordered the
restoration of the subject tenants' rents on April 1, 1991.
In its petition the subject owner asserts, among other things,
that prior orders of the rent agency have determined that rent
reductions are not warranted for a temporary reduction in services
resulting from an emergency situation where the owner has made a
good faith effort to restore services; that the reduction of
services in this proceeding was as a result of an emergency
situation; that one elevator was restored to service on March 21,
1991, and that the owner states that: "if any rent reduction were
to have been warranted, the rent reduction should be limited to the
period commencing the first of the month after the landlord
received the transmittal of the tenant's complaint from the rent
agency until the date that services were restored, March 21, 1991."
After careful consideration, the Commissioner is of the
opinion that the owner's petition should be granted in part and
that this proceeding should be remanded to the Administrator;
except, the Commissioner is also of the opinion that the
proceedings involving Apartments 8F and 8N should be terminated.
It should be noted that the Commissioner issued an order on
January 31, 1992, under Docket No. FF910151RO, pertaining to the
issue of whether the subject tenant who is residing at Apartment 8N
was entitled to a rent reduction as a result of the alleged lack of
elevator service.
As to Apartment 8N, the Commissioner finds that the issues
raised in the owner's petition, in this proceeding, were already
addressed in the aforementioned Commissioner's order issued under
Docket No. FF910151RO.
Accordingly, the Commissioner is of the opinion that the
instant proceeding, as to Apartment 8N, should be terminated as
moot.
It should be further noted that the Commissioner issued an
order on July 12, 1993, under Docket No. FE910286RO, pertaining to
ADM. REVIEW DOCKET NO. FH830195RO
the issue of whether the subject tenant who is residing at
Apartment 8F was entitled to a rent reduction as a result of the
alleged lack of elevator service.
As to Apartment 8F, the Commissioner finds that the issues
raised in the owner's petition, in this proceeding, were already
addressed in the aforementioned Commissioner's order issued under
Docket No. FE910286RO.
Accordingly, the Commissioner is of the opinion that the
instant proceeding, as to Apartment 8F, should be terminated as
moot.
As to the other apartments in this proceeding, the
Commissioner notes that it is a long established policy followed by
the rent agency and the predecessor agency of the D.H.C.R. in
administrating the various statutes providing for the regulation of
housing, that a temporary service reduction resulting from an
emergency situation, where an owner has made a prompt good faith
effort to restore services, will not result in a rent reduction.
The Commissioner further notes that the owner's answer to the
tenant's complaint stated that work was still proceeding on the
building's elevators. As the owner admits that work was still
proceeding on the building's elevators, the Commissioner finds that
at the time the owner was served with the tenants' complaints, the
building services were not fully restored.
As building services were not fully restored at the time the
owner was served with the tenants' complaints, the Commissioner is
of the opinion that the building's service reduction is not a
temporary service reduction as mentioned in the aforementioned
D.H.C.R. policy. The Commissioner finds that the aforementioned
D.H.C.R. policy is not applicable to this proceeding.
The Commissioner notes that the owner was served with copies
of the tenants' complaints on February 21, 1991. The Commissioner
further notes that the order under review herein ordered the
subject apartments' rents reduced from December 1, 1990 through
March 31, 1991.
To ensure due process, it is established policy of the rent
agency that rent reduction orders, pertaining to premises subject
to the State Tenant Protection Regulations, are to be effective the
first day of the month following the date when the owner was served
with the tenant's complaint.
Accordingly, the Commissioner finds that the Administrator's
order incorrectly reduced the tenants' rents effective from a
period prior to the serving of the tenants' complaints on the
owner. The record shows the owner was served with the tenants'
ADM. REVIEW DOCKET NO. FH830195RO
complaint before March 1, 1991. Therefore, the rent reduction from
March 1, 1991 through March 31, 1991 was warranted and is
unaffected by this Order. However, the Administrator's order must
be revoked insofar as it imposed a rent reduction prior to March 1,
1991, and the matter remanded to the Administrator for
reconsideration.
On remand the Administrator should allow the owner an
opportunity to submit evidence showing that repairs to the
elevators have been completed, and that there is no service
reduction due to lack of elevator service.
If the Administrator should determine that a rent reduction is
warranted in this proceeding, the Commissioner is of the opinion
that the order reducing the tenants' rents should be effective no
earlier than March 1, 1991.
If the owner has already complied with the Administrator's
order under review herein, and as a result of the instant
determination, there are arrears due to the owner from the tenants,
the tenants may pay off the arrears in three equal monthly
installments during the next three months. Should any of the
tenants vacate after the issuance of this order, all arrears are
due immediately.
THEREFORE, in accordance with Emergency Tenant Protection Act
of 1974, and the State Tenant Protection Regulations, it is
ORDERED, that, as to Apartments 8F and 8N, this proceeding be,
and the same hereby is, terminated; and it is
FURTHER ORDERED, that, as to the other apartments in this
proceeding, the owner's petition be, and the same hereby is,
granted in part, and that the Administrator's order be, and the
same hereby is, revoked insofar as it ordered a rent reduction
prior to March 1, 1991, and it is
FURTHER ORDERED, that, except for Apartments 8F and 8N, this
proceeding be, and the same hereby is, remanded to the
Administrator for the purpose of reconsidering the tenants'
application for a rent reduction based on the owner's alleged
failure to maintain services in accordance with this order and
opinion.
ADM. REVIEW DOCKET NO. FH830195RO
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
|
