HF630142RO
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.:
HF630142RO
OUDHORAM
&
SOMNAUTH RAGOO,
RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONERS GH630081B
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ORDER AND OPINION GRANTING, IN PART, OWNERS' PETITION FOR
ADMINISTRATIVE REVIEW
The above-named petitioners-owners filed a timely petition for
administrative review (PAR) of an order issued on April 29, 1993,
concerning the housing accommodation known as 274 East 175th
Street, Bronx, New York, wherein the Rent Administrator determined
the tenants' joint complaint of a reduction of building-wide ser-
vices.
Thereafter, the owners commenced proceedings in the Supreme Court,
pursuant to Article 78 of the Civil Practice Law and Rules, in the
nature of mandamus, seeking expeditious processing of their admin-
istrative appeal.
Various tenants commenced the underlying proceedings by filing a
complaint asserting that the owner had failed to maintain certain
building-wide services.
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, the Division of Housing and Community Renewal (DHCR)
conducted an inspection of the subject building. The DHCR
inspector reported that there were roaches in the building hallway
and lobby; that the courtyard entrance drain cover was loose, that
the main entrance stair area had defects under the saddle, and that
paint on the lobby ceiling and two bulkhead areas was peeling,
HF630142RO
blistering, bubbling and water stained and that a moisture meter
read wet. The inspector also reported various defects on all
windows from the first through the fourth floors, including window
sashes on the first and fourth floor windows that dropped down when
opened, a hazardous condition. Other complaints cited by the
tenants were not substantiated.
The Rent Administrator directed restoration of these services and
further ordered a reduction of the stabilized and controlled rents.
In the petition for administrative review, the owners request that
the order be reversed setting forth various grounds. Briefly the
owners contend:
a) That stairwell window repairs were completed, but that a
fire, occurring between the time of the owners' repairs
and the inspection, resulted in the conditions found on
inspection.
b) That the DHCR failed to notify the owners of the results
of the inspection and to afford the owner twenty-one (21)
days to make repairs prior to the issuance of the order,
in accordance with the Agency's procedures.
c) That the findings regarding the stairway windows, the
loose entrance drain cover and the leak and paint condi-
tions were outside the ambit of the tenants' complaint,
and therefore could not be sustained as a basis for a
finding of decreased services resulting in a rent reduc-
tion.
d) That the tenants' complaint regarding windows was overly
broad and vague, so as to render uncertain whether the
allegation, related to the conditions found.
e) That no rent reductions were warranted for the bulkhead
area conditions since the tenants were not affected as
the bulkhead area is not a public part of the building,
that the rent reductions regarding the stairway windows
should have been limited to the tenants residing on the
floor where the windows were located and should have been
graduated to the degree tenants were affected, and that
as the conditions found were "de minimis" in nature they
did not warrant the rent reduction granted.
HF630142RO
After careful consideration the Commissioner is of the opinion that
the petition should be granted, in part, as more fully set forth
below.
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. Pursuant to Section 2202.16 of the Rent and Eviction
Regulations, the Rent Administrator may impose a rent reduction if
there has been a decrease in essential services, furnishings or
equipment, among other items.
Scope of review limits an administrative appeal to review of the
facts and issues before the Rent Administrator, as raised in the
petition. The record does not confirm the owners' allegation on
appeal that the conditions found on inspection are of the type that
occurred as a result of fire damage or that they occurred after the
alleged repairs but prior to the inspection. The only evidence of
repairs to the windows submitted below concerned the replacement of
broken glass. The owners' argument that the conditions were tenant
induced and that the repairs were delayed pending processing of
insurance claims ignores the owners' responsibility to correct
defective conditions promptly.
The owners also allude to the DHCR's former practice of giving the
owner notice of the inspection results if the inspection revealed
that at least 50% of the items in the complaint have been cor-
rected, so as to provide the owner an opportunity to complete
repairs before any order is issued. However, the practice is dis-
cretionary, in that it was applied only if there were no hazardous
conditions among the items remaining to be corrected. The loose
window sashes were determined to be hazardous conditions warranting
a building-wide rent reduction, notwithstanding the 50% procedure.
The Commissioner finds that the conditions cited in the complaint
concerning the broken stairway and windows and defective paint gave
the owners adequate notice of the conditions confirmed on inspec-
tion and fell within the ambit of the complaint.
The Commissioner also rejects the owners' arguments that the
conditions were "de minimis" so as to preclude rent reductions or
that the conditions were isolated so as to affect only a limited
number of tenants. The conditions found indicated serious and
extensive deterioration of certain areas, were not isolated, and
reflect conditions for which the agency normally grants rent reduc-
tions. In fact, the conditions for two windows were determined to
be hazardous.
The owners are correct that the fact that the drain cover was loose
and not secured did not establish that there was a problem in its
ability to drain excess water. It may not, therefore, serve as a
predicate for the rent reduction since the tenants' complaint that
the drain "did not work" was not confirmed. However, the owners'
petition does not establish any other basis for modifying or re-
voking the Administrator's order, which determined that the owners
were not maintaining services based on a physical inspection con-
firming the existence of defective conditions in the subject
building for which a rent reduction is warranted.
To the extent that the loose drain cover condition was not a
sufficient predicate for a rent reduction in the proceedings, it is
deleted from the order, and may not serve as a basis for denying
the owner's rent restoration application. Any rent arrears due the
owner from rent controlled tenants as a result of the order may be
paid in equal monthly installments at the amount of the rent reduc-
tion previously granted but revoked herein,until the arrears are
eliminated. As the rent stabilized rent is reduced for any service
decrease, by the percentage of the most recent guidelines adjust-
ment for the tenant's lease which commenced before the effective
date of the rent reduction, there is no effect on the reduced rent
of the stabilized tenants.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
the City Rent Law and the Rent and Eviction Regulations, it is
ORDERED, that the owners' petition for administrative review be,
and the same hereby is, granted, in part, to the extent of revoking
the drain cover defect as a predicate for the rent reduction. In
all other respects the Rent Administrator's order is affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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