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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
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SJR 6527 DEEMED DENIAL
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: GB230030RO
PARKWAY REALTY RENT
ADMINISTRATOR'S DOCKET
NO.: DJ230053B
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 7, 1992 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued January 6, 1992. The order concerned various
housing accommodations located at 100 Woodruff Avenue, Brooklyn,
N.Y. The Administrator ordered a building-wide rent reduction for
failure to maintain required services.
Subsequently, the owner filed a petition pursuant to Article
78 of the Civil Practice Law and Rules in State Supreme Court
deeming its petition denied. The matter was remitted to the
Division for a determination no later than March 22, 1993.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
This proceeding was commenced on October 17, 1989 when 50
tenants of the 97 who live in the building filed a Statement of
Complaint of Decrease in Building-Wide Services wherein they
alleged the following services deficiencies:
1. Lobby door lock constantly broken,
2. Elevator breaks down frequently; elevator door
fails to close properly,
3. Inadequate hot water,
4. Lack of building security,
5. Loose stairs,
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6. Broken window panes,
7. No lights in incinerators,
8. Roach and rat infestation,
9. Garbage accumulation in backyard.
The complaint was assigned Docket No DJ230053B.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on November
22, 1989 and stated that the lobby door is always closed, that the
elevator is maintained on a monthly basis, that hot water is always
available, that the owner cannot afford a security guard and that
one is unnecessary due to the fact that the door is locked, that
some steps are loose but that the stairs are safe, that all windows
inside the apartments have been fixed, that a accumulation of
debris caused by an apartment fire has been cleaned up, that the
superintendent had ordered special material to exterminate and that
an exterminating service is available on a monthly basis. The
owner attached a copy of an invoice from an elevator maintenance
company which was offered to show that the elevator was, in fact,
maintained.
On February 28, 1990 the tenants filed an additional Statement
of Complaint of Decrease in Building-Wide Services. This complaint
was a restatement of the allegations set forth in the complaint
bearing Docket No. DJ230053B and was assigned Docket No. EC230083B.
The tenants also included allegations that the sewer system was
backed up and that the washing machines in the basement were
constantly broken. On April 27, 1990 the owner filed a response
wherein it essentially repeated the statements set forth above.
The owner added that the sewer problem had been corrected by the
City of New York. The owner failed to address the issue of the
washing machines. On September 24, 1990 the Administrator issued
an order consolidating both proceedings under Docket No. DJ230053B.
The Administrator ordered a physical inspection of the subject
building. The inspection was conducted on November 14, 1990 and
revealed the following:
1. Left wing--sixth floor to second floor hallway
floors missing tiles,
2. Left wing--sixth, fifth and second floor hallway
windows cracked glass panes,
3. Right wing--cracked windows on first, second, fifth
and sixth floors,
4. Defective light bulbs in incinerator rooms on
third, fifth and sixth floors of left wing and
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third, fourth and sixth floors of right wing,
5. Roach infestation in incinerator rooms,
6. Basement incinerator room dirty,
7. Roach, rodent and waterbug infestation in basement,
8. Garbage accumulation in basement,
9. Inadequate lighting in basement,
10. One washing machine broken and inoperative.
The following services were found to have been maintained:
1. Vestibule door lock operative,
2. No evidence of defects to left and right elevators,
3. No backyard garbage accumulation,
4. No evidence of sewer backup or foul odors,
5. Public areas clean and lit.
On November 29, 1990 the Administrator sent a notice to the
owner advising it of the results of the inspection and affording it
21 days to correct the deficiencies reported by the inspector and
to present proof thereof. On January 4, 1991 the owner responded
to the Administrator's notice. It stated that the defective window
panes had been replaced, that the incinerator light bulbs were
operating, that the basement had been cleaned and the exterminator
had been directed to pay attention to the basement, that the
garbage accumulation in the basement had been removed, that the
broken washing machine belonged to one of the tenants and that the
owner had requested that the tenant remove the machine and that the
missing floor tiles could not be replaced because they were
obsolete. The owner stated that it would continue to look for a
place that carried the proper tiles.
On February 6, 1991 the Administrator sent another notice to
the owner. In this notice, the Administrator sought information
and supporting documentation regarding whether laundry service was
provided by the owner at any time prior to the implementation of
the vending contract, the dates on which owner-operated laundry
service started and ended, and what equipment constituted the
previous laundry service. The owner filed a response on February
28, 1991 and stated that laundry service was provided by the former
owner of the building. This prior owner allegedly had a contract
with Hercules Coinmatic Corp. dating back 15-20 years for the
supply of laundry services. The present owner also stated that it
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could not get a copy of that contract, that it had never provided
laundry service in the past or present, and that it never gave
anyone permission to operate such a service.
On May 24, 1991 a reinspection of the premises was carried
out. The inspector reported that the following services were not
being maintained:
1. Floor tiles missing throughout public areas of both
building wings except for first floor,
2. Incinerator room light bulbs missing on third,
fourth and sixth floors of both wings,
3. Evidence of vermin infestation in basement,
4. Evidence of garbage accumulation and old furniture
in basement,
5. One defective washer and two defective dryers.
The following services were found to have been maintained:
1. No evidence of cracked window panes in either wing,
2. Adequate basement lighting.
The Administrator issued the order here under review on
January 8, 1992. The report of the inspector was set forth. The
Administrator also found that the evidence indicated that the
laundry services were provided by Hercules Coinmatic Corp. and
concluded that the owner had failed to substantiate that the
services were always provided by an independent contractor and were
never provided by the owner directly or indirectly on or after the
base date. The Administrator, therefore, ruled that laundry
service was a service required to be maintained by the owner. The
Administrator ordered a rent reduction of $27.00 per month for rent
controlled tenants and an amount equal to the most recent guideline
adjustment for rent stabilized tenants.
On appeal the owner makes the following arguments in seeking
reversal of the Administrator's order:
1. The floor tiles have been replaced on an ongoing
basis by the building maintenance staff, but the
problem has been exacerbated by tenant and visitor
vandalism. The owner states that it is attempting
to install a more vandal proof tile and argues that
it should not be penalized for acts of vandalism by
others.
2. The missing incinerator light bulbs fall within the
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category of routine maintenance. Prior agency
determinations have held items requiring routine
maintenance are not a basis for a rent reduction.
The owner again argues that the bulbs have been the
subject of tenant vandalism and that they are
replaced as needed. The owner attached copies of
paid bills for hardware supplies which specifically
include light bulbs.
3. Building tenants are using the basement as a
garbage dump, despite the efforts of the building
maintenance staff to keep the area clean. Besides
accounting for the garbage accumulation reported by
the inspector, the owner argues that these acts by
the tenants have resulted in the vermin
infestation. The owner states that the maintenance
staff makes reasonable efforts to keep the building
clean.
4. The owner was not given notice of either of the two
inspections and argues that this failure to give
notice constituted a denial of due process.
5. Laundry service is an ancillary service which is
not subject to the provisions of the Rent
Stabilization Code. The owner states that service
has been provided by Safkur Corp. for the past 15-
20 years and that this company has never had any
ownership interest in the building. The owner
further states that the 1984 Building Registration
Statement does not list laundry services as one
being provided by the owner.
Responses to the petition were filed by several tenants. One
tenant stated that services were not being maintained and the
petition should be denied. Two other tenants stated that the owner
was maintaining services, although one of the two tenants added
that the owner's repairs had come after the Administrator's order
had been issued.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
Addressing the owner's arguments in the order presented, the
Commissioner has consistently rejected the argument that acts of
tenant or visitor vandalism or neglect can excuse an owner from the
continuing duty to maintain required services (Accord: CI130116RO;
EG530202RO). It is the owner's obligation to insure that the
defective condition is corrected either by purchasing vandal-proof
tiles or taking action against any tenant or visitor found to have
been vandalizing building property. The Commissioner also notes
that prior decisions have affirmed rent reduction orders for
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defective building tiles (see Docket. Nos. EL430202RT and
FK530308RO).
With regard to the defective incinerator room light bulbs, the
Commissioner rejects the owner's defense that the replacement of
these bulbs constitutes routine maintenance for which a rent
reduction is not appropriate. The maintenance of adequate public
area lighting is related to the important issue of tenant safety.
While the owner may have made attempts to replace the defective
bulbs, the fact remains that two different physical inspections
several months apart confirmed the tenants' complaint. The
Administrator was correct in ordering the rent reduction based on
this finding.
The owner's contention regarding the infestation and garbage
accumulation in the basement is without merit. As stated above, it
is the responsibility of the owner to maintain services regardless
of the acts of the tenants. Whether by more frequent cleaning of
the basement or taking action against any tenant found to be using
the basement as a garbage dump, the owner must maintain a clean
basement and eradicate the infestation.
The owner states that it was denied due process by not being
given notice that inspections would be conducted by the agency.
However, it is the policy of the DHCR that the complaint of the
tenants puts the owner on notice of the existence of the conditions
and the need to investigate. No further notice is required. The
courts have upheld this policy (see Empress Manor Apartments v.
DHCR 147 A.D.2d 642, 538 N.Y.S.2d 49 [2nd Dept., 1989]). The
Commissioner also notes that fact that the owner was sent a copy of
the results of the first inspection and afforded a reasonable
opportunity to correct the deficiencies noted, but the second
inspection revealed that no repairs had been done.
Finally, with regard to the issue of the rent reduction based
on the defective washer and dryers, the Commissioner notes that the
owner's February 21, 1991 response to the Administrator's notice
stated that the laundry service was being provided by a former
owner to the building through Hercules Coinmatic Corp. In the
petition, the owner states that the service is and was being
operated by Safkur Corp. who "never had any ownership interest in
the building."
Required services are defined by Section 2520.6 (r) of the
Rent Stabilization Code as "that space and those services which the
owner was maintaining or was required to maintain on the applicable
base date... and any additional space or services provided or
required to be provided thereafter by applicable law." Ancillary
services for which there is a separate charge are not subject to
the provisions of the Code where no common ownership between the
operator of such services and the owner exists or existed on the
applicable base date or at any time subsequent thereto and such
service is or was provided on the applicable base date by an
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independent contractor.
The base date for building-wide services for housing
accommodations subject to the Rent Stabilization Law on June 30,
1974 is May 31, 1968.
For rent controlled tenants essential services are defined by
Section 2200.3 (b) to include "those essential services which the
landlord furnished, or which he was obliged to furnish on April 30,
1962 and which were included in the maximum rent for the housing
accommodations on that date."
In the instant case, the owner has failed to establish that
the laundry facilities were not provided on the applicable base
dates or that they were always provided by an independent
contractor. The vague statements that there has been a contract
for the provision of this service for the past 15 to 20 years is
not dispositive of what the situation was on the base date.
Moreover, the absence of laundry service on the 1984 building
registration is not dispositive of the issue. Required or
essential services that an owner must continue to maintain are
defined by what was required on the base date regardless of what
was registered. The rent reduction for defective laundry
facilities ordered by the Rent Administrator was warranted. The
order here under review is affirmed.
THEREFORE, pursuant to the Rent Stabilization Law and Code and
Rent and Eviction Regulations for New York City it is
ORDERED, that this petition be, and the same hereby is,
denied, and that the Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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