GK410094RT
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OR RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NY 11433
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: GK410094RT
HA410024RO
NEW YORK LIFE INSURANCE CO.
Petitioner-Owner
&
JEROME DUNLEVY RENT ADMINISTRATOR'S
DOCKET NOS.: EH410842S
Petitioner-Tenant EL410390S
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ORDER AND OPINION DENYING TENANT'S PETITION FOR ADMINISTRATIVE
REVIEW AND GRANTING OWNER'S PETITION FOR ADMINISTRATIVE REVIEW, IN
PART, TO THE EXTENT OF RESCINDING RENT ADMINISTRATOR'S RENT
REDUCTION ORDER, AND REMANDING PROCEEDINGS TO THE ADMINISTRATIVE
FOR FURTHER CONSIDERATION.
The above-named petitioner tenant filed a timely petition for
administrative review of an order issued on September 30, 1992 per
Docket No. EH410842S, concerning the housing accommodations known
as 200 East 66th Street, Apartment B2005, New York, New York,
wherein the Administrator determined that no rent reduction was
warranted as services were being maintained.
The above-named petitioner-owner filed a timely petition for
administrative review of an order issued on December 2, 1992 per
Docket No. EL410390S, concerning the subject accommodations,
wherein the Administrator determined that conditions found in the
subject apartment constituted services reductions warranting a rent
reduction.
The proceedings have been consolidated as they involve the
identical parties and subject apartment, as well as similar and
overlapping complaints, as more fully set forth below.
The Commissioner has reviewed all the evidence in the records and
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has carefully considered those parts of the records relevant to the
issues raised by the petitions.
The tenant commenced the proceedings by filing separate complaints
asserting that the owner had failed to maintain certain services.
In the complaint per Docket No. Eh410842S, filed on August 30,
1990, the tenant alleged that the "spandrel" above a living room
window was rotting, that paint was flaking and discolored due to an
on-going problem of leakage and collapsing ceiling, extending back
several years, which had been raised in prior Enforcement Bureau
harassment proceedings and other service reduction complaints and
proceedings. The tenant's submissions below included a report,
prepared by the architect/engineer retained by the tenant, stating,
in substance, that the conditions were due to structural defects.
In the complaint per Docket No. EL410390S, filed on December 24,
1990, the tenant alleged extensive cracks in the living room
ceiling and rotting and peeling "fascia" over a living room window.
In fact, the Enforcement Bureau harassment proceedings were closed
with a finding that the circumstances did not amount to harassment.
The closing memorandum therefrom noted, among other things, that an
April 27, 1990 inspection, conducted at the request of the
Enforcement Bureau, revealed certain thin cracks in various areas,
that the owner agreed to complete needed repairs, and that a report
prepared by the construction engineer retained by the owner to
ascertain the cause of the cracks, pursuant to a suggestion by the
Enforcement Bureau's Counsel's, indicated that the cracks were
cosmetic in nature.
An inspection was conducted on September 17, 1992, in connection
with the complaint per Docket No. EH410842S. The inspector
reported that the cracks, peeling paint and plaster and leaks and
stains, on ceilings and above windows had been repaired apartment-
wide and that there was no evidence of moisture.
On September 20, 1992, the Rent Administrator issued an order per
Docket No. EH410842S, that denied the tenant's request for a rent
reduction, based on a finding that services were maintained.
Thereafter an inspection was conducted on November 9, 1992 in
connection with the tenant's complaint per Docket No. EL410390S.
The inspector reported evidence of cracks in the living room
ceiling, and around a window frame, and rotting and rust over
window "fascia" in the living room and dining area windows.
On December 2, 1992, the Rent Administrator issued an order per
Docket No. EL410390S directing the owner to correct the conditions
GK410094RT
confirmed by the November 2, 1992 inspection, and further, ordered
a reduction of the stabilization rent.
In his petition for administrative review of the order per Docket
No. EH410842S, the tenant argues, in substance, that the
Administrator's failure to effect permanent structural repairs.
The tenant contends that such a finding was necessary to induce the
owner to make such permanent repairs to preclude repetitions of
damage.
After careful consideration, the Commissioner is of the opinion
that the tenant's petition should be denied.
The tenant's petition does not establish any basis to modify or
revoke the Administrator's order per Docket No. EH410842S, which
determined that the owner was maintaining required services, based
on the physical inspection conducted on September 17, 1992.
The record reflects that the owner repaired the defective paint and
plaster defects and that such defects were not apparent
approximately two years after the tenant's complaint.
As to the tenant's request that the Administrator compel the owner
to make specific structural changes and repairs, the Commissioner
notes that the DHCR does not involve itself in the management of
regulated buildings and that management decisions, including
appropriate repairs of defective conditions, are properly left to
the owner's discretion.
If, as here, the tenant claims that the repairs were not adequate
and the owner claims that they were, DHCR will decide, based on the
record, including among, other things, the report of the impartial
DHCR inspection, whether services are adequate at the time of
inspection, subject to the parties substantive and due process
rights under the Rent Stabilization Law & Code.
Albeit defective conditions were found at the inspection conducted
on November 12, 1992, in the proceedings per Docket No. EL410390S,
this was subsequent to the Administrator's September 30, 1992 order
per Docket No. EH410842S. The Administrator's order denying a rent
reduction was correct based on the record presented in Docket No.
EH410842S.
In its petition for administrative review of the Administrator's
order per Docket No. EL410390S, the owner claims, in substance,
that it was denied due process because it never received a copy of
the complaint.
GK410094RT
An examination of the case docket and DHCR registration records
confirms that the mailing address entered on the notice to the
owner of the tenant's complaint, as well as on the order, was not
the owner's then and current registered address, but rather the
owner's address prior to the April 1990 registration. Moreover,
notices to the owner in the proceedings per Docket No. EH410842S
were addressed properly to the owner's correct registered address.
Based on the fact that the owner was not properly served the
complaint or the Administrator's order, the Commissioner is of the
opinion that the rent reduction order per Docket No. EL410390S
should be rescinded.
The Commissioner is of the further opinion that the matter should
be remanded to the Rent Administrator for further consideration.
The parties shall be afforded the opportunity to submit additional
evidence and to comment on the entire record.
The Commissioner is rejects the owner's further argument that a
substantive dismissal of the tenant's complaint is also warranted,
as two-and-a-half (2«) months earlier, in the proceedings per
Docket No. EH410842S, the inspector did not find defective
conditions. The fact that no defective conditions were found
previously did not preclude their occurrence thereafter. The
owner's bare suggestion that no inspection was conducted in
connection with the proceedings per Docket No. EL410390S is
rejected as being without merit, and belied by the record.
THEREFORE, in accordance with the provisions of Rent Stabilization
Law and Code, it is,
ORDERED, that the tenant's petition be denied and that the Rent
Administrator's order per Docket No. EH410842S, be affirmed. It is
further
ORDERED, that the owner's petition be granted, in part, to the
extent of rescinding the Rent Administrator's order per Docket No.
EL410390S and the proceedings remanded to the Administrator for
further consideration, in accordance with the above.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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