DOCKET NOS.: FH930135RO, et al.
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE :
APPEAL OF ADMINISTRATIVE REVIEW
: DOCKET NOS. FH930135RO
17-21 CENTRE STREET REALTY CORP., FK910100RT
VARIOUS TENANTS, PETITIONERS : FK910101RT
DRO DOCKET NOS. MED910039B
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
These petition are being consolidated as they involve common issues of law
The above named petitioner-owner filed a timely Petition for Administrative
Review against order number MED910039B issued on July 15, 1991. Eight
tenants filed timely petitions against order number MFH910169OR, issued
October 22, 1991. Both orders were issued by the Rent Administrator, 55
Church Street, White Plains, New York, regarding housing accommodations known
as various apartments, 17-21 Centre Street, Mount Vernon, New York. The Rent
Administrator determined in the first order that the rents should be reduced
because of certain reductions in service and in the second order the
Administrator restored the rents based on a restoration of services.
The issues in this appeal are whether the rent reduction and subsequent
restoration were proper.
The applicable sections of the Tenant Protection Regulations are Sections
2503.4 and 2505.2.
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 these administrative appeals.
The tenants commenced this proceeding on April 7, 1990 by filing a complaint
of reduced services alleging that a storage room, a garbage room and an
outdoor parking area which the tenants had previously been able to use were
no longer available to tenants. In addition, they alleged that there was
inadequate hot water.
In Order Number MED910039B, herein under appeal by the owner, the Rent
Administrator determined that the records of the Division indicated that a
DOCKET NOS.: FH930135RO, et al.
storage room was not a base date service. In addition, based on a Notice
from the Mount Vernon Building Department which stated that outdoor parking
was not permitted at the rear of the subject building, the Administrator
implicitly found that the owner did not have to allow the tenants to park in
that area. However, the Administrator reduced the rents, finding after an
inspection, that the water temperature was inadequate and that the owner was
not providing a suitable garbage room.
In its petition, the owner contends that the Rent Administrator's Order is
incorrect and should be modified because the owner has always maintained
garbage collection areas both inside and outside the building and has always
provided a sufficient number of receptacles for the tenants. In addition,
the owner alleges its has always maintained adequate hot water and that it
was arbitrary and capricious to reduce the rents based on a single inspec
tion. The owner adds that it has spent considerable money to repair the hot
water system and that all the bills for these repairs have been submitted to
the DHCR in White Plains.
Furthermore, the owner contends it was unfair to reduce the rent for parking
when the City of Mt. Vernon prohibited such parking.
Finally, the owner alleges that the tenant complaints were "instigated" by a
disgruntled former employee.
In answer to this petition, the tenants contend that the order reducing the
rent should be upheld because only one-third of the garbage area was
restored; the owner parks in the allegedly illegal parking area; and it took
the owner two years to correct the hot water problem. One tenant submitted
a statement accusing the owner of acts of personal abuse and/or harassment.
On August 1, 1991 the owner filed an Application to Restore Rent alleging
that there was a garbage room in the basement of building #21 with 9 trash
cans which are emptied daily, the trash being taken to the driveway on the
east side of the building, where an additional 12 - 13 trash cans are
maintained. Regarding the hot water, the owner alleged that between March
1990 and December 1990 the hot water system was updated, including the
installation of an additional coil which gives 15 gallons per minute. The
owner further alleged that from June 1990 through August 1991 a temperature
of 142o has been maintained. In support of this contention the owner attaches
a letter from the Superintendent of Plumbing for the City of Mount Vernon
Department of Buildings stating that he had tested the water on August 1,
1991 and found it to be 142o fahrenheit.
Also attached to the application were work orders and invoices and statements
from various tenants who did not participate in the complaint and one
statement from a tenant who had participated in the complaint but wished now
to be excluded therefrom.
Eight tenants filed answers in opposition to this application, the substance
of each answer being contained in a two page letter written by the tenants'
representative, which was attached to each answer. (One answering tenant
stated she had submitted a letter in favor of her landlords's application
In their answers the tenants stated: (1) the hot water has been restored,
but only after two years; (2) only half of the garbage room has been
restored, the other half being used to store the owner's paint and paint
DOCKET NOS.: FH930135RO, et al.
thinners, thus creating a fire hazard; (3) the storage room which was found
not to be a base date service was available to tenants from 1948 to 1988 when
the present owner took over the building; (4) the owner and his relatives,
friends, and employees park in the area which the City of Mount Vernon had
declared illegal; (5) other complaints, e.g., regarding doorbells had been
submitted as "a follow-up" to the underlying complaint herein; (6) the
present owner discontinued an extermination service that had been provided
for over 35 years; and (7) the tenants' representative's apartment has not
been painted in 8 years.
On October 22, 1991, under docket number MFH910169OR, the Administrator found
that the conditions for which order number MED910039B had reduced the rent
had been corrected and that a rent restoration was warranted. The order
noted that the tenants had acknowledged the hot water service was restored.
Furthermore, the Administrator determined that the garbage disposal method
provided by the owner was now suitable.
In their petitions eight tenants contend that the Administrator's rent
restoration order is incorrect and should be modified because (1) the storage
area discontinued by the owner was mandated by lease (copies of eight leases
"which have just been found" are attached to the petitions); (2) only half
the garbage space was restored, the rest being used to store paint; (3)
several tenants went to the Mount Vernon Building Commissioner to ask why the
owner was able to park in the illegal parking area; they were told that the
owner had just applied for a permit to make the parking legal; accordingly,
the parking service should be restored to the tenants who had enjoyed it for
many years; (4) although the hot water is now sufficient, the heat is
inadequate for cold weather.
In answer to the tenants' eight petitions the owner contends the rent
restoration order should be upheld because (1) DHCR records showed a storage
area was not a base date service. The owner admits clearing out a locked
room "filed with abandoned debris ad old broken furniture" and converting to
an office for the conversion of the tenants. In addition, the owner contends
that a careful reading of the leases submitted by the tenants shows that they
did not indicate that storage space would be provided. (2) The restored
garbage room in building 17 contains the same amount of receptacles as the
original room (five); the large garbage room in building 21 contains 12 or
more receptacles; the storage portion of building 17's garbage room never
contained functioning garbage receptacles, but only unused extra garbage
cans. (3) No legal parking was provided at the time the owner acquired the
building; the owner's application for a permit to park three personal
vehicles is still pending (as of January 13, 1992) with the City of Mount
Vernon. (4) The tenants are merely speculating that heat will not be
adequate at a future time.
The Commissioner is of the opinion that the owner's petition should be denied
and that the tenants' eight petitions should be denied.
At the outset, the Commissioner notes that the Administrator's first order
did not find that the owner was obligated to provide either parking or a
storage room. The tenants did not file a petition against that order
(MED910039B). Accordingly, the owner was not required to restore those
services in order to receive a rent restoration. Therefore, the tenants'
allegations regarding parking and the storage made in opposition to the
owner's application for a restoration of rent were beyond the scope of the
restoration proceeding (MFH910169OR) and the similar allegations made on
DOCKET NOS.: FH930135RO, et al.
appeal are all beyond the scope of the present appeal. By not appealing the
Administrator's first order within 35 days of its issuance, the tenants lost
their right to appeal the Administrator's findings with respect to the
parking and the storage room.
To raise these issues in the rent restoration proceeding or in these appeals
amounts to collaterally attacking the Administrator's first order. The fact
that the owner raised the issue of parking in its appeal does not change this
Secondly, all of the allegations regarding services (and/or harassment) other
than the specific services for which a rent reduction was ordered and than
restored (garbage room and hot water) are beyond the scope of this review and
will not be considered. Included in the issues which are beyond the scope of
this review are: heat, painting, doorbells, exterminator service. However,
this order is without prejudice to the tenants' rights to raise any or all of
these issues in another proceeding, if the facts so warrant.
Turning to the relevant substance of these appeals, the owner's petition must
be denied. It is undisputed that the hot water was inadequate on the day of
the inspection. It was not arbitrary to reduce the rent based on that
Since the rent reduction and restoration for hot water and garbage room would
have occurred in the same amount and for the same period based on the hot
water alone, it is not necessary to determine whether the rent reduction for
the garbage room was warranted. However, the Commissioner notes that in its
answer to the tenants' complaint the owner admitted discontinuing the use of
a garbage room and alleged it was not a required service. It was found to
have been restored as a service in the Administrator's second order.
Regarding the tenants' appeals of the rent restoration, three of the four
contentions (regarding the storage room, parking area, and heat) are beyond
the scope of review as stated above. The fourth contention (that the owner
only partially restored use of the garbage room and is using the remaining
portion to store paint) is hereby found to be without merit. Based on the
record as a whole, including the fact that the tenants did not even allege
that the number of trash receptacles after the restoration was less than
before, the Commissioner hereby affirms Administrator's finding that suitable
garbage disposal is now provided. As to the allegation that the owner's
storage of paint creates a fire hazard, this is beyond the scope of this
proceeding and could perhaps be addressed to the appropriate department of
the City of Mount Vernon or in a new service complaint, if the facts so
As stated above, because the tenants failed to appeal the Administrator's
first order (MED910039B), the issue of parking is beyond the scope of these
appeals. Nevertheless, because the record on appeal discloses that the
parking area whose use was denied to the tenants has subsequently been used
by the owner and that the owner has applied for and perhaps by now received
a permit from the City of Mount Vernon to park in the area in question, this
Order is without prejudice to the tenants' right to file another complaint
regarding the issue of parking, if the facts so warrant. If such a complaint
is filed, one issue to be considered is how the tenants were able to use the
parking area from 1978 (the year the violation was issued by the City of
Mount Vernon) until 1988 when the present owner acquired the building.
DOCKET NOS.: FH930135RO, et al.
THEREFORE, in accordance with the Emergency Tenant Protection Act and
Regulations, 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.
JOSEPH A. D'AGOSTA