FJ130158RO
                                  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.: FJ130158RO
                                                  
          ANN BENDICK REALTY                     RENT
                                                  ADMINISTRATOR'S DOCKET 
                                                  NO.: EA130108B
                                  PETITIONER           EH130058B
          ----------------------------------x


            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                  IN PART AND MODIFYING RENT ADMINISTRATOR'S ORDER

               On October 18, 1991 the above named petitioner-owner filed a 
          Petition for Administrative Review against an order of the Rent 
          Administrator issued September 16, 1991. The order concerned 
          various housing accommodations located at 33-24 Parsons Blvd., 
          Flushing, N.Y.  The Administrator directed restoration of services 
          and ordered a rent reduction for failure to maintain required 
          services.  

               The Commissioner has reviewed the record and carefully 
          considered that portion relevant to the issues raised by this 
          appeal.

               The proceeding was commenced on August 7, 1990 when 38 tenants 
          of this 114 unit building joined in filing a Statement of Complaint 
          of Decrease in Building-Wide Services wherein they alleged, in sum, 
          that the owner was not maintaining certain required services.  The 
          complaint was assigned Docket No. EA130108B.  The Commissioner 
          notes that, on August 7, 1990, one tenant filed an additional 
          building-wide services complaint wherein he alleged, in relevant 
          part, that the garage roof gate and garage roof door were defective 
          and that the parking lot was dirty.  The complaint was assigned 
          Docket No. EH130058B.  In an order issued by the Administrator on 
          March 19, 1991, the proceeding in Docket No. EH130058B was 
          terminated because it was being consolidated with Docket No. 
          EA130108B.   

               The owner was served with a copy of the complaints and 
          afforded an opportunity to respond. On September 21, 1990 the owner 
          filed a response to the complaint assigned Docket No. EH130058B and 
          stated, in sum, that it had investigated the tenant's complaint and 
          had removed debris from outside the building.  The owner also 
          stated that the garage door was operating properly and that the 












          FJ130158RO

          garage roof gates are fire exits that may not be locked.
           
               The Administrator ordered a physical inspection of the subject 
          building.  The inspection was conducted on April 22, 1991 and 
          revealed the following:

                    1.   Right side elevator did not stop level on second, 
                         fifth and sixth floors,

                    2.   Entrance doors leading to both garages and the 
                         garage door leading to the back yard parking lot 
                         are broken,

                    3.   Parking lot has broken asphalt and concrete; right 
                         side of parking lot has debris accumulation; center 
                         of lot flooded,

                    4.   Garage roof gate on right side has collapsed.

          All other services were found to have been maintained:

               On May 31, 1991 the Administrator sent the owner a notice 
          wherein the owner was apprised of the above noted inspector's 
          report and afforded an opportunity to make repairs and submit proof 
          of such repairs to the Administrator.  On June 21, 1991 the owner 
          submitted a signed statement to the Administrator to the effect 
          that the required repairs had been made.

               The Administrator ordered another physical inspection of the 
          subject building.  The inspection, which was conducted on July 11, 
          1991, revealed evidence of debris accumulation in the parking lot, 
          collapsed garage roof gate, and defective right side garage door.  
          All other services were found to have been maintained.
            
               The Administrator issued the order hereunder review on 
          September 16, 1991 and ordered the rents of all tenants who signed 
          the complaint reduced by the percentage of the most recent 
          guideline adjustment for tenants' leases commencing before 
          September 1, 1990.

               On appeal the owner states, in relevant part, that a rent 
          reduction was ordered for tenants who did not sign the complaint, 
          that tenants who do not use the garage or parking lot were 
          erroneously granted a rent reduction, that the garage roof gate did 
          not collapse, that the right garage door is working properly, that 
          only the tenants in the right side garage are affected by such 
          door, that the debris accumulation cited in the Administrator's 
          order is on land that the owner does not own, and that the cited 
          conditions are too trivial to warrant a rent reduction.  The 
          petition was served on the tenants on November 19, 1991.
               Various tenants filed responses wherein they stated, in sum, 
          that the order hereunder review was correctly issued and should be 






          FJ130158RO

          affirmed.

               After careful review of the evidence in the record, the 
          Commissioner is of the opinion that the petition should be granted 
          in part and the order hereunder review should be affirmed as 
          modified herein.

               The Commissioner notes that the proceeding bearing Docket No. 
          EH130058B was initiated by only one tenant (Apt. 2E).  No other 
          tenant joined in the filing of this complaint.  The allegations 
          regarding the debris in the parking lot, collapsed garage roof gate 
          and defective garage door were not contained in Docket No. 
          EA130108B, which was filed by the other tenants who were granted a 
          rent reduction by the Administrator.  The Commissioner is of the 
          opinion that, since only one tenant complained about the conditions 
          for which a rent reduction was ultimately ordered, then only that 
          tenant should be granted a rent reduction.  Therefore, the order 
          hereunder review is revoked for all tenants except the occupant of 
          Apt. 2E.

               With regard to all other arguments raised by the owner, the 
          Commissioner has reviewed the owner's answer to the complaint in 
          Docket No. EH130058B in that answer.  The owner did not raise in 
          that answer any of the defenses now raised in the petition, except 
          to state that the conditions had been investigated and repaired.  
          The scope of review in an administrative appeal is limited to facts 
          or evidence submitted to the Administrator unless the owner 
          explains why such facts or evidence could not have been submitted.  
          With regard to all arguments that were not submitted to the 
          Administrator, the Commissioner will not consider them on appeal.  
          With regard to the owner's statements that the roof gate is not 
          collapsed, the Commissioner finds that reports of the DHCR 
          inspector, described above, to be dispositive of the issue.  The 
          owner has not rebutted the report.  The order hereunder review is 
          affirmed with regard to the occupant of Apt. 2E.

               The automatic stay of the retroactive rent abatement which 
          resulted from the filing of this petition is vacated upon issuance 
          of this order and opinion.  The Commissioner notes that the owner's 
          rent restoration application, which was assigned Docket No. 
          FK130011OR, has been granted by the Administrator.

               THEREFORE, pursuant to the Rent Stabilization Law and Code it 
          is 

               ORDERED, that this petition be, and the same hereby is, 
          granted in part, and that the Rent Administrator's order be, and 
          the same hereby is, affirmed as modified herein.  Any tenant who


          owes arrears based on the Commissioner's decision herein may pay 
          off said arrears in twelve (12) equal monthly installments or 












          FJ130158RO

          immediately if the tenant vacates the apartment.

          ISSUED:



                                                                             
                                             JOSEPH A. D'AGOSTA
                                             Deputy Commissioner
                                   
    

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