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




          ----------------------------------x     SJR NO.:  7303
          IN THE MATTER OF THE ADMINISTRATIVE     ADMINISTRATIVE REVIEW
          APPEAL OF                               DOCKET NO.:              
                                                  HF630142RO
                       OUDHORAM
                           &
                    SOMNAUTH RAGOO,
                                                  RENT ADMINISTRATOR'S
                                                  DOCKET NO.:
                                  PETITIONERS     GH630081B 
          ----------------------------------x



              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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