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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, NY 11433
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: GG210154RO
Grace Duncan,
RENT ADMINISTRATOR'S
DOCKET NO.: FK210015S
PETITIONER
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ORDER AND OPINION GRANTING, IN PART, PETITION FOR ADMINISTRATIVE
REVIEW, AND REMANDING PROCEEDINGS TO RENT ADMINISTRATOR
FOR FURTHER CONSIDERATION
The above-named owner filed a timely petition for administrative
review of an order issued on June 26, 1992, concerning the housing
accommodations known as 763 Lenox Road, Apartment 2R, Brooklyn, New
York, wherein the Rent Administrator determined the tenant's
complaint of decreased services.
The Commissioner has reviewed all the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the petition.
The tenant commenced this proceeding by filing a complaint
asserting that the owner had failed to maintain certain services in
the subject apartment.
In an answer, the owner denied the allegations set forth in the
complaint or otherwise asserted that all required repairs had been
or will be completed.
The DHCR conducted an inspection of the subject apartment that
confirmed certain conditions cited by the tenant. The DHCR
inspector reported the evidence observed of roach and rodent
infestation, and that the new replacement patio door was drafty and
not weather stripped properly.
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The owner's attorney submitted a letter dated May 15, 1992,
addressing the tenant's contention that the owner would not permit
the tenant access to and use of the patio adjoining the apartment
even though the previous tenant had used it. The letter stated
that "The subject apartment adjoins a terrace, which though not a
part of Apartment 2-R, was used by the previous owner as part of
said leasehold. For all intents and purposes, however, the terrace
is really the top of a garage and clearly is not part of Apartment
2R."
The Rent Administrator directed restoration of these services and
ordered a rent reduction based on the results of the inspection,
and on the further finding that the owner's attorney's statement
regarding the patio/terrace constituted an acknowledgement of the
tenant's claim.
In the petition for administrative review, the owner, by its
attorney, asserts that extermination services had been provided
only weeks prior to the inspection, and disputes the finding that
the replacement patio door permitted air seepage or needed
additional weather stripping.
The owner also challenges the determination that the attorney's
statement below acknowledged that the tenant was entitled to access
to the patio/terrace. The owner seeks to explain the statement
below, contending that the previous owner who had lived in the
apartment had access, but that such use did not establish it as a
base date service once the apartment was leased. The owner further
asserts that no tenant was ever authorized to use the area.
After careful consideration, the Commissioner is of the opinion
that the petition should be granted, in part, and that the
proceedings should be remanded to the Rent Administrator for
further consideration, as more fully set forth below.
While the Rent Administrator interpreted the attorney's statement
that the patio/terrace "was used by the previous owner as part of
said leasehold" to constitute an acknowledgement that the prior
owner allowed tenants to use the patio/terrace area, although it is
not part of the apartment that adjoins it, the owner's explanation
on appeal also offers a plausible alternative reading of the
attorney's statement below. The record presented is not
sufficiently clear to serve as a predicate for a finding that the
prior owner allowed use of the patio/terrace area by tenants, which
the current owner is required to continue.
Consequently, the question of whether the use of the patio/terrace
area is a service the owner is required to provide must be remanded
to the Rent Administrator for further consideration.
On remand the parties shall be provided the opportunity to submit
additional information and to comment thereon. If necessary for a
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determination, a hearing may be held.
In light of the above, a stay of the Rent Administrator's directive
that the owner restore this service is appropriate.
The owner does not establish any other basis for modifying or
revoking the Rent Administrator's order. The inspection confirmed
the tenant's complaint of rodent infestation. The extermination
services the owner asserts were performed prior to the inspection
do not appear to have been effective to eradicate the rodent
problem. Also, the inspection results contradicted the owner's
assertion that the replacement patio door did not require
additional weather stripping to prevent drafts.
Based on the record, a rent reduction was warranted pursuant to
Section 2523.4, which requires the DHCR to order a rent reduction,
upon application of a tenant, where it is found that the owner has
failed to maintain required services.
The automatic stay of the retroactive rent abatement that resulted
by the filing of the petition is vacated upon issuance of this
order and opinion.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby, is granted in
part, to the extent of remanding the proceedings to ascertain if
use of the patio/terrace area was previously a service to the
tenants of the subject apartment, which the current owner is
required to provide. A stay of the Rent Administrator's directive
to restore this service is also warranted. In all other respects,
the Rent Administrator's order is hereby affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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