STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X S.J.R. No. 7198
IN THE MATTER OF THE ADMINISTRATIVE DOCKET NO.:HD130047RO
Leemar Management Corp.
PETITIONER DOCKET NO: EA130021RP
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 16, 1993, the above-named petitioner-owner filed a
Petition for Administrative Review (PAR) against an order issued on
March 16, 1993 by the Rent Administrator (Gertz Plaza) concerning
the housing accommodations known as 68-64 Yellowstone Boulevard,
Forest Hills, New York, various apartments, wherein the
Administrator revoked the rent increase granted on September 18,
1986 under Docket No. QCS 000325OM.
Subsequent thereto, the owner filed a petition in the Supreme
Court pursuant to Article 78 of the Civil Practice Law and Rules
requesting that the Court direct the Division to determine its
Administrative Appeal. Pursuant to a court order dated December 21,
1993 the proceeding was remitted to the Division for an expeditious
determination of the owner's Administrative Appeal.
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 this Administrative Appeal.
The owner initiated the instant proceeding by filing an application
for a major capital improvement (MCI) rent increase in November
1984 predicated on the installation of a new roof. Said application
was granted by the Rent Administrator on September 18, 1986 under
Docket No. QCS 000325OM and rent increase adjustments were
authorized for the installation of the new roof.
ADMIN REV. DOCKET NO. HD130047RO
Several tenants (44) filed Administrative Appeals against the
Administrator's order (Docket No. QCS 000325OM) and on December 19,
1989 the Commissioner issued an order and opinion under Docket Nos.
AJ120200RT et al remanding the proceeding to the Administrator for
further processing in order to resolve the issue as to the adequacy
and effectiveness of the work performed.
Upon the remand, a physical inspection was conducted of the subject
premises by Division personnel during April 1990. Said inspection
reported the existence of water seepage/damage in the upper floor
side hallways, as well as water damage to the ceilings in Apts.
60A, 61A, 62A, 63A, 64A, and 62B. The report indicates that the
inspector was unable to tell if a complete new roof had been
installed or some new tar paper was laid over the existing roof
surface, which tar paper was patched in three areas; that flashing
was missing in various areas of the roof and parapet had air
By notice dated June 25, 1991, the owner was served with a copy of
the inspection report and directed to submit evidence that the
necessary repairs have been performed to correct those conditions
noted during the inspection conducted in April 1990.
By letter dated July 15, 1991, the owner stated, among other
things, that the necessary repairs were performed to correct the
conditions reported in the Division's inspection report.
On July 7 and 8, 1992, subsequent inspections were conducted of the
subject premises, the report of which disclosed that the parapet
wall in section A is bulged and the existence of water damage and
bulging in the upper floor side hallway for both sections A and B.
Of the eighteen apartments scheduled for inspection, five of six
previously inspected apartments (60A, 61A, 62A, 63A, and 62B) still
disclosed evidence of water seepage/damage. Six apartments (60B,
61B, 64B, 65B, 66B and 67B) not previously inspected also disclosed
evidence of water seepage/damage. Said report further stated that
the inspector was unable to obtain access to apartments: 64A, 65A,
66A, 68A, 63B, and 68B.
On March 16, 1993 the Administrator issued the order appealed
herein (Docket No. EA130021RP) revoking the rent increase granted
under Docket No. QCS000325OM on grounds that the roof installation
was performed in an unworkmanlike manner as evidenced by continued
water seepage/damage, bubbling and peeling paint/plaster found in
the upper floor apartments and the hallways.
ADMIN REV. DOCKET NO. HD130047RO
In this Petition for Administrative Review, the owner requests
revocation of the Administrator's order and contends, in substance,
that the roof work was completed in May 1984; that the gap of six
or eight years between the installation and the inspections is too
long and makes any report arbitrary and capricious as to the
condition of the roof in 1984; that if the Division had made timely
inspections, the MCI increase would have been granted; that the
roof work should not be considered as repairs since such work
consisted of cutting, flattening and sealing of bubbles/tarring the
roof/applying two-ply covering, 15 pounds of felt and asphalt; that
the April 1990 inspection report was inconclusive at best since
said report did not state that a new roof was not laid down and
accordingly, the Division must find that a new roof was installed;
that the issue turns on the alleged leakage and evidence of water
damage which the Division arbitrary assumed occurred due to defects
of the roof; that the alleged existence of water seepage/damage
does not necessarily mean it resulted from a defective roof since
evidence of such damage can also result from inadequate
waterproofing on the exterior walls or damage to plumbing pipes;
and that the owner has submitted documentation to the Division
evidencing that various repairs were attended to.
Submitted with the petitions were copies of contracts and invoices
for work performed (plastering, painting, pointing, waterproofing,
sealing and repairing cracks) in and to exterior of several
apartments (A60, A61, A62, A63, A64, A66, A67, A68, B60, B63, B64,
B67 and B68).
After a careful consideration of the entire record, the
Commissioner is of the opinion that this petition should be denied.
At the outset the Commissioner notes that when the matter was
originally before the Rent Administrator, 59 tenants asserted that
the work was of poor quality and that leaks and water seepage
continued after the stated completion of the work; and that the
proceeding was properly remanded to the Rent Administrator for
further action since the Administrator had not adequately
investigated the tenants' complaints.
The Commissioner further notes that the issue herein is not whether
a new roof was laid down but rather whether the installation in
question was performed in such a workmanlike manner so that all
tenants benefited therefrom.
ADMIN REV. DOCKET NO. HD130047RO
Although the owner was afforded adequate opportunity to correct the
conditions noted by the April 1990 inspection, reinspections
conducted in July 1992 confirmed the continued existence of water
seepage/damage in the upper floor hallways and in several
apartments. The fact that eleven out of a total of eighteen top
floor apartments showed signs of water seepage/damage upon
subsequent inspection is further evidence of a recurring problem of
water penetration. Whenever a new roof is replaced it is reasonable
to expect that the top floor apartments should enjoy the benefit of
an improvement that is free from exterior water seepage. It would
be inappropriate to approve an increase where, as in the case
herein, the record discloses that essential services particularly
relevant to the claimed improvement are not being maintained.
The owner in its application for MCI increases certified to the
maintenance and continued maintenance of essential services.
Clearly the owner has not been maintaining services as far back as
1989 as evidenced by an inspection conducted of the subject
premises by the Attorney General's office on July 11, 1989.
The record discloses that although the owner submitted several
copies of contracts/invoices as evidence that various repairs were
attended to, only six invoices from a painting company, L.A.
Painting Co., for plastering and painting were dated subsequent to
the inspections conducted in July 1992.
Accordingly, the Administrator properly found that the roof
installation performed in 1984 and the repairs performed thereafter
were not performed in a workmanlike manner and were not all the
work necessary to keep the premises reasonably free from water
penetration from the roof and thus a rent increase is not warranted
under the applicable Code provisions and Regulations.
THEREFORE, in accordance with the Rent Stabilization Law and Code
and the Rent and Eviction Regulations for New York City, it is
ORDERED, that this petition be, and the same hereby is, denied; and
that the order of the Rent Administrator issued on March 16, 1993
revoking the rent increases previously granted be, and same hereby
JOSEPH A. D'AGOSTA