STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
PETITIONER FK 430016-B
ORDER AND OPINION GRANTING OWNER'S PETITION FOR ADMINISTRATIVE
REVIEW, REVOKING THE ADMINISTRATOR'S ORDER AND REMANDING
PROCEEDINGS TO THE ADMINISTRATOR FOR FURTHER CONSIDERATION
On August 17, 1992, the above-named petitioner owner filed a
Petition for Administrative Review (PAR) against an order issued on
July 21, 1992, by the Rent Administrator at Gertz Plaza, Jamaica,
New York, concerning the housing accommodations known as 250 East
39th Street, New York, New York, wherein the Administrator deter-
mined the tenants' complaint of building-wide service decreases.
The challenged order granted the tenants rent reductions based on
the results of an inspection conducted on April 14, 1992 that found
evidence of hairline cracks in the west lobby wall, and unpainted
plaster in the north lobby wall, a cracked lobby closet door with
a defective lock, elevator fans that were not operating at the time
of inspection, evidence of vermin waste droppings and of peeling
paint and plaster in the basement laundry area, and accumulation of
newspaper bundles in the basement elevator area.
On appeal, the owner requests that the rent reduction order be re-
voked on substantive grounds, in that all services are maintained,
and on procedural grounds, asserting that it never received a copy
of the complaint. The owner also asserts that some of the
signatures on the complaint were fraudulent.
Several tenants responded that the service decreases continue
unabated, particularly the vermin infestation. However, at least
four tenants support the owner's claims. In signed statements,
they assert that, in fact, they had not signed the complaint or
that the nature of the document was misrepresented to them, and
that services are maintained.
Concerning the owner's suggestion of procedural irregularities, the
owner claims that it " . . . never received proper notification
concerning this Docket No. (FK 430016-B). The only papers . . .
received from the Division of Housing and Community Renewal (DHCR),
was the actual order itself reducing the rents, dated July 21, 1992
. . . "
The case docket containing the record below was stolen and has not
been recovered to date. The circumstances of the theft are
detailed in a Police Complaint, identified as NO. 25260, dated
August 25, 1992, Command 014.
Measures were therefore taken to reconstruct the file in accordance
with DHCR procedures for recreating a lost file.
The parties were requested to submit copies of any documents in
their possession pertaining to these proceedings.
The tenants' submissions included the original Notice and Trans-
mittal of Tenants' Complaint (Form RA-104), dated December 5, 1991.
This form is, in fact, the Division's notice to the owner of the
The fact that the original notice was submitted by the tenant is
conclusive evidence that the owner was not properly served by the
Division with notice concerning the complaint. The fact that the
tenant may have sent a copy of the complaint to the owner contem-
poraneously with filing the complaint with the Division did not
serve to cure the procedural defect.
Since the owner was never properly served with the notice of the
complaint, the owner was denied the opportunity to be heard. This
lack of due process warrants revocation of the building wide rent
reduction order, notwithstanding that some conditions constituting
service decreases were confirmed on inspection.
The matter must, therefore, be remanded to the Administrator for
further processing. The owner has acknowledged receipt of the July
21, 1992 order herein under review. The date thereof shall be
considered the date of notice of the proceedings to the owner. The
parties shall be provided copies of the record to date, in accord-
ance with the normal procedures including service of the complaint
on the owner. They shall be afforded the opportunity to submit
additional evidence and shall be afforded the opportunity to com-
ment thereon. At the Administrator's discretion, an inspection may
The owner acknowledges receipt of the July 21, 1991 Administrator's
rent reduction order, which afforded the owner notice of the defec-
tive conditions reported by the inspector on April 14, 1992. If on
remand, a rent reduction is found to be warranted, it should be
effective as of August 1, 1992, the month following issuance of the
The owner's allegation of fraud against one tenant notwithstanding,
the record, as reconstructed, reveals that the overwhelming number
of tenants have not retracted their signatures from the complaint.
The owner's assertions on appeal are not sufficient to establish
the claim of fraud. However, on remand, the tenants who assert
they did not knowingly sign the complaint should be afforded the
opportunity to withdraw from the proceeding.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that the owner's petition be, and the same hereby is,
granted, and the Administrator's rent reduction order is revoked.
It is further
ORDERED, that the proceedings be remanded to the Administrator to
reconsider the tenants' complaint of building-wide service de-
creases as provided above. It is further
ORDERED, that the tenants' rents be restored to pre-reduction
levels plus any guidelines, or other increases, as may be appli-
cable. Rent arrears may be due the owner from the tenants as a
result of this order.
JOSEPH A. D'AGOSTA