HC230254RO
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.:
HC230254RO
JANET BRAND
&
HSUAN PING YUAN, RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONERS EJ230152B
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioner-owners filed a timely petition for
administrative review (PAR) of an order issued on April 23, 1993
concerning the housing accommodations known as 382 12th Street,
Brooklyn, New York, various apartments, wherein the Rent
Administrator determined the tenants' complaint of a reduction of
certain building-wide services.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the petition.
Three rent stabilized tenants commenced this proceeding by filing
a complaint asserting that the current owners discontinued the
tenants' access to the basement for storage and of the backyard,
permitted by the prior owner.
The owners denied the allegations set forth in the complaint, and
asserted that they were never services provided by the former
owner, who was aged and infirm, and not able to prevent unauthor-
ized use. The owners also stated that neither of the services were
registered by the then owner in the initial 1984 services registra-
tion, nor provided for in the tenants' leases.
In response to a request for additional information, the tenants
reiterated that they had always had access to the basement for
storage and to the backyard for recreational and other uses. The
tenants also stated that the owners had removed and discarded the
tenants' property from the backyard. Copies of the tenants'
responses were mailed to the owner. There is no record of a
response from the owner.
HC230254RO
Thereafter, an inspection of the subject premises was conducted by
the DHCR inspector who confirmed that the tenants did not have
access to the storage facilities and backyard at the time of the
inspection.
The Rent Administrator ordered restoration of these services, and
further, ordered a reduction of stabilization rents.
In the appeal the owners reiterates that access to the basement
storage space and to the backyard were never required services, and
that such services were not registered nor authorized, and not set
forth in the tenants' leases.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
Pursuant to Section 2523.4 of the Rent Stabilization Code, DHCR is
required to order a rent reduction, upon application by a tenant,
where it is found that an owner has failed to maintain required
services.
The tenants asserted and the owners denied basement storage space
and use of the backyard were services provided by the owners.
However, on appeal the owners confirmed that the tenants had been
directed to remove their possessions from the basement and to cease
use of the backyard . The owners also stated on appeal that from
1986 through 1988 the building was managed by a professional
managing agent and thereafter by the executrix of the incapacitated
prior owner until transfer of title. If the services were not
authorized initially, failure to take appropriate action when the
facts became apparent to them constituted a waiver. Accordingly,
the owners, as successors in interest, remain obligated to continue
these services.
The owners are in error in raising the initial 1984 building regis-
tration to establish that the basement storage space and use of the
backyard were not contemplated as services. Tenants can assert
decreases of required or essential services at any time. Whether
or not the services were listed in the tenants' leases is also not
relevant. Required or essential services are not confined to
services set forth in the lease. It is the actual services
provided on the base date or thereafter, not lease provisions or
registered services, that control.
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The one tenant's request to withdraw the complaint cannot be con-
sidered since the order was issued properly, and must therefore be
followed.
The automatic stay of retroactive abatements that resulted by the
filing of the petition is vacated upon issuance of this Order and
Opinion.
The owners may file a rent restoration application if the facts so
warrant.
THEREFORE, in accordance with the Rent and Eviction Regulations for
New York City, the City Rent Control Law, and the Rent Stabiliza-
tion Law and Code, 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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