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 ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: GA430129RO
MATILDA & MIKLOS KISS RENT
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND MODIFYING RENT ADMINISTRATOR'S ORDER
On January 10, 1992 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued December 18, 1991. The order concerned various
housing accommodations located at 502 W. 143rd Street, New York,
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
This proceeding was commenced on March 22, 1990 when 9 of the
24 tenants filed a Statement of Complaint of Decrease in Building-
Wide Services wherein they alleged, in sum, that the owner was not
maintaining certain required or essential services including
failure to maintain the public hallways and the fact that there had
been no elevator service for the past three weeks.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on April 17,
1990 and stated, in relevant part, that the public hallways were
regularly cleaned and mopped by the superintendent and that the
elevator is maintained by a contractor.
The Administrator ordered a physical inspection of the subject
building. The inspection was conducted on May 1, 1991 and revealed
that the public area floors were dirty, that the elevator was out
of order and that there was no sign posted informing the tenants of
the superintendent's name, address and telephone number. All other
services complained of were found to have been maintained.
On July 11, 1991 the Administrator sent the owner a notice
wherein it was informed of the conditions relating to the elevator
and sign. The Administrator did not notify the owner about the
condition of the public hallway floors. The owner was afforded an
opportunity to make repairs and present proof thereof.
On July 18, 1991 the owner filed a response and certified that
the elevator had been repaired and that the superintendent sign had
been posted. The owner provided documentation and photographs to
support this contention.
The Administrator ordered a second inspection of the building.
The inspection was conducted on September 3, 1991 and revealed that
the elevator was inoperative and that the public hallway floors
were not clean.
The Administrator issued the order here under review on
December 18, 1991. Rent controlled tenants were granted a rent
reduction of $5.00 per month for the condition relating to the
floors plus a specified percentage of the maximum collectible rent
for the condition relating to the elevator. A rent reduction of an
amount equal to the most recent guideline adjustment was ordered
for rent stabilized tenants.
On appeal the owner states that the elevator was temporarily
inoperative and the hallways temporarily unclean due to ongoing and
temporary major capital improvement construction in the building.
The owner further states that the tenants agree that the reduction
in services was temporary in nature and that 7 of the tenants
listed as recipients of the rent reduction no longer live in the
building. The owner attached documentation to the petition in the
form of copies of an application for rent increases due to the
installation of major capital improvements. This documentation is
offered to support the owner's contention that the repair work
being done was temporary and necessary for the upgrading of
building services. The petition was served on the tenants on May
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 here under review should be affirmed as
With regard to the issue of the elevator, the Commissioner
notes that, pursuant to Section 2523.4 of the Rent Stabilization
Code, tenants may apply to the DHCR for a rent reduction based on
the owner's failure to maintain services and the Administrator
shall reduce the rent upon finding that services have been reduced.
Pursuant to Section 2202.16 of the Rent and Eviction Regulations,
rent controlled tenants may apply for a rent reduction and the
Administrator is empowered to order a rent reduction in a specific
dollar amount reflecting the reduction in rental value because of
the diminution of services. Elevator service is included within
the definition of required and essential services.
The Commissioner finds that the Administrator based this
determination on the entire record including the results of the on-
site physical inspection described above. The owner's defense, to
the effect that elevator operation was halted due to ongoing MCI
construction, is insufficient to rebut the inspector's report. The
DHCR inspector is neither a party to the proceeding or an
adversary. The report stated that the elevator was out of order
and did not refer to any ongoing repair work. This finding is
The finding with regard to the hallway floors is revoked. The
Commissioner notes that the Administrator's July 11, 1991 notice,
sent to the owner after the initial inspection, made no mention of
the fact that the inspector reported that the public hallways were
dirty. The failure to provide the owner complete notification of
the inspector's report and subsequent granting of a rent reduction
based, in part, on a condition missing from the notice in question
denied the owner due process of law. The finding, and the rent
reduction ordered for rent controlled tenants based on this
condition, were granted erroneously. The rent reduction ordered
for rent stabilized tenants is affirmed. The order here under
review is affirmed as modified herein. With regard to rent
stabilized tenants, the automatic stay of the retroactive rent
abatement that resulted by the filing of this petition is vacated
upon issuance of this order and opinion.
The owner may file for rent restoration when services have
been fully restored.
THEREFORE, pursuant to the Rent Stabilization Law and Code and
Rent and Eviction Regulations 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. With regard to
rent controlled tenants who owe arrears based on this the
Commissioner's decision herein, the installments of back rent
payable for each month shall not exceed the difference between the
rent established by the order and the prior rent.
JOSEPH A. D'AGOSTA