GE530151RO
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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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: GE530151RO
MARTIN KIRZNER RENT
ADMINISTRATOR'S DOCKET
NO.: GA530031B
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND REMANDING PROCEEDING TO RENT ADMINISTRATOR
On May 12, 1992 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued April 24, 1992. The order concerned various
housing accommodations located at 35 Hamilton Place, New York, N.Y.
The Administrator issued an order establishing the rents of 32
tenants at $1.00 per month effective February 10, 1992, the date on
which the tenants were allegedly forced to vacate their apartments
due to a fire.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
This proceeding was commenced on January 13, 1992 when 21
tenants in this 90 unit building joined in filing a Statement of
Complaint of Decrease in Building-Wide Services wherein the
complaining tenants alleged, in sum, that the owner was not
maintaining certain required building-wide services.
On February 10, 1992 the tenant named on the heading of the
complaint advised the Administrator that she wished to withdraw
the complaint because the building is under new management and all
services are being provided.
In an answer to the complaint dated February 19, 1992, the
owner stated that there was a major gas explosion in the building
on February 10, 1992 and that the fire and its aftermath completely
destroyed the building's public areas as well as several
apartments. A copy of a vacate order (#V 00653) issued by the Fire
Department was submitted. The order pertains to Apts. 707, 710,
711, 712, 714, 607, 610, 611, 507, 510, 511, 407, 410, 411, 307,
310, 311, 207, 210, 211 and 107. The owner also stated that the
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apartment of the official representative for all the tenants (Apt.
711) was completely destroyed but a deal had been worked out with
her to have her withdraw the complaint because gas service, which
was the main reason for the complaint, had mostly been restored.
The owner claimed that the gas explosion was caused by efforts by
Con Edison to restore gas to three more risers. The owner asserted
that it would be unfair for DHCR to conduct a physical inspection
at this time because it will take months to repair the damage from
the explosion. Finally, the owner asked the Division to contact
the tenants' representative for verification of the owner's
statements.
A physical inspection by the Division was conducted on April
12, 1992. The inspector reported that the vestibule door lock was
defective and the door was not self-closing, that there was peeling
paint in the hallways and stairways, the lobby floor was defective,
the main entrance door did not close properly, the light fixture in
the hallway near the elevator was defective, the locks and sashes
on all hallways windows were defective, the hallway floors were
dirty, the elevator lighting was defective, no gas was provided and
there was evidence of vermin infestation.
The Administrator issued the order here under review on April
24, 1992 and ordered that, pursuant to Section 2202.22 (c) of the
Rent and Eviction Regulations and Section 2522.4 (d) of the Rent
Stabilization Code, the rents of all rent controlled tenants and
those rent stabilized tenants who joined the complaint, be
established at $1.00 per month effective February 10, 1992.
On appeal the owner states, in sum, that the Administrator
erred in including tenants in the order here under review who were
not listed in the Fire Department's above described order. The
owner argues that only those tenants who were commanded by the Fire
Department to vacate should be entitled to relief granted by the
order here under review. The petition was served on the tenants on
June 2, 1992.
Various tenants filed responses wherein they stated, in sum,
that the order here under review should be affirmed. One tenant
stated that the owner was making a good faith attempt to repair
the building and should be allowed the time needed to complete
repairs.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be granted,
the Rent Administrator's order should be modified and the
proceeding should be remanded to the Administrator for further
processing.
The order here under review was premised solely on the Fire
Department's order. Therefore, the owner is correct in that the
Administrator should have granted relief only to those tenants who
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were listed in the "Vacate Fire" order. The Commissioner finds
that the rent should be established at $1.00 per month effective
February 10, 1992 for the tenants of Apts. 707, 710, 711, 712, 714,
607, 610, 611, 507, 510, 511, 407, 410, 411, 307, 300, 311, 207,
210, 211 and 107. The order is affirmed with regard to these
tenants and is revoked for all other tenants. In order for the
rents to be restored to the level in effect prior to the explosion,
the owner must establish the date the apartments became habitable
and the rents will be restored as of that date. A copy of this
order and opinion will be sent to the pending rent restoration
proceeding (Docket No. HG530015OR) wherein the date of habitability
of the affected units will be determined.
The Commissioner further notes that this proceeding was
initiated because of complaints of decreased building-wide services
stated by the tenants and that within a month of the filing of the
complaint, a letter was received by the Rent Administrator
withdrawing the complaint. Although the letter was submitted by
the tenant named in the heading of the complaint, the complaint did
not designate her as the authorized tenant representative.
Accordingly, it cannot be determined whether the complaint was
withdrawn by all the tenant-signatories and whether the one tenant
was acting as an individual tenant or on behalf of all others.
Moreover, it is apparent that the major gas explosion which
occurred in the building on February 10, 1992 caused so much water
and structural damage throughout the public areas of the building
that the items mentioned in the original complaint were affected,
necessitating more extensive and time-consuming repairs.
Accordingly, the proceeding is being remanded to the Rent
Administrator for the purpose of determining whether the complaint
was withdrawn by all tenant-signatories, and if not, for re-service
of the complaint on the owner and for a new inspection to determine
whether necessary repairs have been made. If it is determined that
the owner has failed to maintain required services, an appropriate
prospective rent reduction should be ordered for rent controlled
tenants and the rents should be reduced by a guideline for rent
stabilized tenants effective the first of the month following the
re-service of the complaint on the owner.
With regard to rent stabilized tenants, the automatic stay of
the retroactive rent abatement which resulted by the filing of this
appeal is vacated upon issuance of this order and opinion.
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, and that the Rent Administrator's order be, and the same
hereby is, affirmed as modified herein and it is further
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ORDERED, that this proceeding be, and the same hereby is,
remanded to the Rent Administrator for further processing
consistent with this order and opinion. If the tenants of the
apartments for which the order here under review has been revoked
owe arrears based on the Commissioner's decision herein, for rent
stabilized tenants the arrears may be paid off in thirty six (36)
equal monthly installments and, for rent controlled tenants, the
installments of back rent shall not exceed the difference per month
between the rent established by the order and the prior rent. Any
tenant who vacates owes arrears immediately.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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