HE530100.R0
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL
JAMAICA, NY 11433
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: HE530100RO
45 Tiemann Associates,
RENT ADMINISTRATOR'S
DOCKET NO.: GH530005B
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR
ADMINISTRATIVE REVIEW, IN PART
The above-named owner filed a timely petition for administrative
review (PAR) of an order issued on April 8, 1993 concerning the
housing accommodations known as 45 Tiemann Avenue, New York,
New York, wherein the Rent Administrator determined that certain
conditions found in the subject building constituted services
decreases.
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 tenants commenced this proceeding by filing a complaint
asserting that the owner had failed to maintain certain services in
the subject building.
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.
Thereafter, an inspection of the subject premises was conducted by
a DHCR inspector who confirmed the existence of several defective
conditions. The inspector reported that there was evidence of
debris in the courtyard, of defective windows in the stairwell from
the basement to the roof, peeling paint on radiators and covers,
chipped lobby marble steps, and a severed stoop lightpost showing
sharp edges.
HE530100.R0
The Rent Administrator directed repairs and restoration of these
services, and further, ordered rent reductions.
In its petition for administrative review, the owner argues, in
substance, that the defective conditions cited were vague and did
not correspond to the allegations made in the complaint.
After careful consideration, the Commissioner is of the opinion
that the petition should be granted in part.
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. Section 2202.16 of the Rent and Eviction Regulations
provides that the Rent Administrator may order a decrease of the
legal rent if there has been a decrease in essential services which
may include, but are not limited to, repair, painting, and
maintenance.
The tenants' complaint detailed the conditions that the tenants
sought to have corrected. Service of the tenants' complaint gave
the owner adequate due process notice of the conditions. An
inspection of the subject premises by the DHCR inspector confirmed
several specific conditions listed in the tenants' complaint. The
inspector's report of his observations allowed the Rent
Administrator to determine that the owner was not maintaining
required and essential services, for which rent reductions were
warranted.
Notwithstanding the above, that part of the inspector's report
setting forth that there was "evidence of defective windows in
stairwell" did not reflect the conditions observed, but rather, the
inspector's conclusion from his observations. The owner claims
that the windows were not defective. The inspector's statement was
insufficient as evidence upon which the Administrator could
determine whether or not the window conditions observed constituted
a services decrease. Moveover, the authority to determine whether
a condition constitutes a defect so as to warrant a rent reduction
lies with the Rent Administrator, not the inspector. Lacking the
evidence upon which to base a determination, defective windows must
be rescinded as a basis for a rent reduction. The tenants may file
a new complaint regarding the defective stairwell window
conditions, if any, the owner has failed to correct.
The owner is correct that current rent stabilized tenants who did
not sign the complaint below are not entitled to a rent reduction.
However, all rent controlled tenants properly received a rent
reduction since at least one rent controlled tenant signed the
complaint.
The owner's argument that certain conditions were tenant-induced
HE530100.R0
ignores the owner's responsibility to correct them promptly.
The owner may file a rent restoration application if the facts so
warrant.
The automatic stay of the retroactive rent abatement that resulted
by the filing of this petition is vacated upon issuance of this
order and opinion.
The refund of any rent arrears that may be due the owner from rent
controlled tenants, as a result of rescinding the rent reduction
for defective windows is stayed pending further consideration of
this matter.
Rent arrears may be due the owner from rent stabilized tenants who
did not sign the complaint but who received rent abatements. The
arrears shall be paid in monthly installments equal in number to
the monthly reductions taken.
THEREFORE, in accordance with the Rent Stabilization Law and Code
and the Rent Eviction Law and Regulations for the City of New York,
it is
ORDERED, that this petition be, and the same hereby is, granted in
part, to the extent of revoking the rent reduction granted to rent
controlled tenants based on the finding of defective windows as a
basis for a rent reduction. These proceedings are remanded to the
Rent Administrator for further consideration of the tenants'
complaint of defective windows, as provided above. In all other
respects, the Rent Administrator's order is affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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