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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 6534 DEEMED DENIAL
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.:
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GUTMAN, MINTZ, BAKER & GB 210348 RT
SONNENFELDT, P.C.
RENT
RONALD COHEN, TENANT REP. ADMINISTRATOR'S DOCKET
NO.: CK 230005 B
PETITIONERS
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ORDER AND OPINION DENYING OWNER'S PETITION FOR ADMINISTRATIVE
REVIEW AND GRANTING TENANT'S PETITION FOR ADMINISTRATIVE REVIEW
IN PART
The above named attorneys for the owner and tenant
representative filed timely Petitions for Administrative Review
against an order of the Rent Administrator issued January 27, 1992.
The order concerned various housing accommodations located at 2400
E. 3rd Street, Brooklyn, N.Y. The Administrator ordered a
building-wide rent reduction for failure to maintain required
services.
Subsequent thereto, the owner deemed the petition denied and
filed a petition for judicial review pursuant to Article 78 of the
Civil Practice Law and Rules. The court remitted the proceeding to
the Division for issuance of a final administrative determination
within 60 days of November 23, 1992.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by these
appeals.
This proceeding was commenced on November 1, 1988 when 92 of
the 178 tenants filed a Statement of Complaint of Decrease in
Building-Wide Services wherein they alleged the following services
deficiencies:
1. Defective intercoms,
2. Defective windows,
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3. Leaking roof,
4. Elevators out of order,
5. Lobby floor not level, hole in lobby ceiling and
north wall,
6. Roach infestation,
7. Laundry room equipment out of order,
8. Ventilation system obstructed,
9. Exposed wiring above entrance canopy,
10. Cracks in concrete opposite building entrance and
throughout north and south rear yard; debris
accumulation in north yard
11. Public hallway tiles missing; chipped baseboard
tiles,
12. Owner has denied access to Avenue X entrance gates,
13. Parking lot gate unlocked and open to unauthorized
access,
14. Stairway walls dirty and in need of paint,
15. Lack of regular building maintenance,
16. Security service discontinued,
17. Parking lot drain obstructed.
The owner was served with a copy of the complaint and afforded an
opportunity to respond.
The owner's managing agent filed a response on December 7,
1988. It stated the following:
1. A new intercom was installed in the building and
the Managing Agent has addressed complaints
relating to service,
2. A building-wide questionnaire was circulated to the
tenants to pinpoint which apartments had problems
with the windows,
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3. The majority of the roof leaks were traceable to
one apartment. The owner stated that it had been
in contact with that tenant in an attempt to fix
the problem,
4. The elevator problems would be repaired,
5. The lobby floor had been repaired,
6. The laundry room equipment would be repaired by the
company with whom the owner had a service contact,
7. There is a contract with a licensed exterminator
with regard to the roach problem,
8. The owner would investigate the ventilator problem,
as well as the problems of the exposed wiring,
concrete cracks and public hall tiles,
9. The rear yard exit gate is not a fire exit and is
not a safety hazard to the tenants,
10. A fence has been erected around the parking lot,
11. The stairwells would be painted by the
superintendent,
12. Maintenance is performed in the building on a
regular basis,
13. The security guard service was supplied to the
tenants on a temporary basis due to major
construction being performed in the building. The
service was never meant to be permanent,
14. The drain is no longer obstructed.
The owner attached supporting documentation to the response. This
documentation was offered to show that repairs were made, that the
building was being serviced or that the owner had service contracts
with companies.
The owner filed four supplementary responses. The first was
filed on December 22, 1988. The owner stated that it had scheduled
appointments for window and intercom repair, that the roof would be
repaired at a later time, that the lobby, ventilation system,
stairwells and parking lot drain had been repaired, that the
concrete problem would be repaired in January, and reiterated that
the security service was hired on a temporary basis. The owner
again attached documentation to support it's claims to the
response.
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The second supplementary response was filed on January 24,
1989. The owner stated that the roof leaks in apartments 707, 722
and 723 had been repaired and that 11 apartments had been serviced
for window repairs. Invoices for the work allegedly done were
attached to the response.
The third supplementary response was filed on February 16,
1989. The owner stated that the laundry room had been painted and
plastered, that the light fixture at the building entrance had been
repaired, that 13 apartments had received intercom servicing, that
12 apartments had their windows serviced, and that the elevator was
in the process of being upgraded. The owner attached additional
invoices as well as a letter from a licensed exterminator
attesting to the fact that exterminating services were offered to
the tenants on a regular basis.
The final response, dated June 29, 1989, was notification, by
the managing agent, that the elevator upgrading was complete. The
owner submitted proof of payment to the construction company.
The Administrator ordered a physical inspection of the subject
building. The initial inspection was conducted on June 20, 1989.
The building was reinspected on May 7, 1990 and again on September
10, 1991. The inspector reported the following:
1. Lobby floor buckled and uneven,
2, Cracked concrete found in north and south rear
yards.
The following services were found to have been maintained:
1. Elevator,
2. Janitor service building-wide,
3. Laundry room ceiling,
4. Vestibule ceiling,
5. Ventilation system,
6. Main entrance wiring,
7. Building-wide walls,
8. Rear yard fence,
9. Parking lot drain,
10. Shrubbery grounds,
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11. Laundry room washers and dryers.
The Administrator was required to resolve the issue of whether
security guard service was a "required" service within the meaning
9 NYCRR 2520.6 (r) and 2523.4. Accordingly, on April 25, 1990 a
notice was sent to the parties requesting production of a notarized
statement and supporting documentation in response to the following
questions:
1. How many guards were provided and the work schedule
they followed,
2. What the guards' duties were and where they were
stationed,
3. A copy of any contract entered into with any
security guard company and the name of said
company,
4. A copy of the cooperative offering plan for the
subject building.
The owner did not submit a response to the Administrator. The
tenants' council submitted a response to the Administrator dated
June 4, 1990. In that response the tenants stated that the
security guard service was provided beginning in 1986. The service
was 8 hours per day, 5 days a week of 1 uniformed guard during the
hours of 6 PM to 2 AM. The tenants further stated that the service
had been instituted due to their repeated complaints of poor
security. The tenants stated that the owner discontinued the
service in the spring of 1988 and that the tenants protested this
action. The owner then allegedly reinstituted the service in May
of 1988 with 2 guards being employed each day between the hours of
6 PM and 6 AM. The service was allegedly discontinued for the
final time in October, 1988. No copy of the offering plan was
provided.
The Administrator issued the order here under review on
January 27, 1992. The Administrator found that the lobby floor and
rear yard concrete were not being maintained. Based on the
tenant's submission and the fact that the owner did not file a
response to the April 25, 1990 notice, the Administrator deemed the
owner to have admitted that security guard service was a required
service not being maintained. Based on these three findings of
decreased services, the Administrator ordered a rent reduction of
an amount equal to the most recent guideline adjustment. The rent
reduction was ordered effective December 1, 1988.
Both the owner and tenants filed appeals from the order.
The tenants state that the Administrator's order fails to address
certain items as stated in the complaint. Specifically, the
tenants state that the order did not address the issues of the rear
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yard exit gate which has not been repaired by the owner thus
eliminating a fire exit. Second, the tenants state that the
building parking lot was formerly locked by a gate. The lot is no
longer locked thereby exposing the lot to unauthorized access and
the fence at the rear of the lot has been taken down thereby
exposing the rear yard to vehicle transit and damage. Finally, the
tenants state that, with regard to the rear yard, the order here
under review did not address the issues of accumulated debris. The
debris in question are two steel dumpsters not utilized for garbage
removal.
The petition of the owner, as represented by counsel, states
that the Administrator's order was served on the improper managing
agent. The petition also states that "Services cited on Order were
not decreased." The petitioner states that additional
documentation would be forthcoming, yet no such documentation has
been received. The tenants' council filed a response on May 4,
1992 wherein the tenants stated that the owner's petition should be
dismissed for the following reasons:
1. The original complaint named both the cooperative
and the managing agent,
2. The tenants notified the DHCR of the management
change by letter in 1990,
3. The owner (i.e. the coop corporation) was served
with a copy of the complaint,
4. The petition is not timely filed.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition of the owner
should be denied but that the petition of the tenants should be
granted in part and the order here under review should be affirmed
as modified herein.
The Commissioner considers the owner's petition to be without
merit. Regardless of whether the owner was properly served with
the Administrator's order, the fact remains that a timely petition
for administrative review has been filed to challenge that order.
The filing of this petition preserved the owner's rights and,
indeed, the owner has not been prejudiced in any way. The
statement that services have not been decreased is wholly
unsupported and at variance with the inspector's report. It is
settled that the report of a DHCR inspector is entitled to more
probative weight than the unsupported allegations of a party to the
proceeding.
With regard to the tenants' petition, however, the
Commissioner notes that the reports of the DHCR inspectors
confirmed that the Avenue X rear yard exit gate was padlocked at
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the time of the inspection and that the East 2nd Street parking lot
was not locked and did not have a lock. The Commissioner further
notes that a Notice of Opportunity to Present Information was sent
to the parties on October 26, 1992. Both parties responded to the
notice and stated that there is no longer access to the street from
the Avenue X exit and that the parking lot gate remains unlocked.
Accordingly, the Commissioner is of the opinion that the tenants
are correct in stating that the Administrator's order should have
included both of these items in the list of services not being
maintained. The order is hereby modified to include the failure of
the owner to afford the tenants access to Avenue X through the rear
yard exit, and the failure of the owner to properly lock the
parking lot gate. In order for the rent to be restored, the owner
must demonstrate that these services have been restored, in
addition to repairing the lobby floor and cracked concrete in the
rear yards.
The Commissioner notes that, with regard to the issue of
debris in the rear yard, the physical inspections revealed that the
condition did not exist at the time of the inspections.
THEREFORE, pursuant to the Rent Stabilization Law and Code it
is
ORDERED, that the owner's petition for administrative review
be, and the same hereby is, denied and it is further
ORDERED, that the tenant's petition for administrative review
be, and the same hereby is granted in part, and the order here
under review be, and the same hereby is, modified in accordance
with this order and opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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