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.: CG 130027-RO
:
DRO DOCKET NO.: BH 110168-B
CENTRAL QUEENS PROPERTY
ASSOCIATES PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND MODIFYING DISTRICT RENT ADMINISTRATOR'S ORDER
On July 1, 1988, the above-named petitioner-owner filed a Petition for
Administrative Review against an order issued on May 27, 1988, by the
District Rent Administrator, 92-31 Union Hall Street, Jamaica, New York,
concerning various apartments at 55-30 98th Place, Corona, New York,
wherein the District Rent Administrator directed a rent reduction based on
a finding of a decrease in 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 administrative appeal.
This proceeding was originally commenced on August 14, 1987 by the
filing of a complaint of decreased services by the tenants alleging, among
other things, that the roof doors do not close properly and are not self-
locking, that the elevators run spordically and indicator lights are
missing, that the playgrounds had been dismantled, and that the garages
flood and the garage heating systems had been decreased.
The tenants requested a rent reduction based upon the alleged decrease in
services.
On November 5, 1987, the DHCR sent the owner a copy of the tenant's
complaint.
In answer to the complaint, the owner stated that services were being
maintained and that there were no playground areas.
By subsequent correspondence dated December 28, 1987 and April 28, 1988
the owner stated that this complaint was one of seven identical complaints
for each of the buildings in the complex. The owner advised that it was
in the process of renovating and refurbishing the building complex; that
it was remedying each of the alleged conditions; and that it was in the
process of resolving all of the issues directly with the tenants. The
owner submitted letters dated December 17, 1987 and February 23, 1988 from
the Vice President of the Tenants' Association acknowledging certain
repairs and stating that the owner had agreed to paint the halls, walls,
doors and stairwells. The owner requested that the DHCR hold the
DOCKET NUMBER: CG 130027-RO
complaints in abeyance while the owner was resolving the issues with the
tenants. The owner stated that it would submit a supplemental answer to
address unresolved items and to update its answer with respect to the
course of the renovations to the building.
An inspection was conducted on January 29, 1988 and February 1, 1988 by a
staff member of the DHCR which showed the following:
1. The roof doors are not self-closing and are unsecured.
2. The elevator does not level at each floor and the indicator
light is inoperative.
3. The benches and playground items have been removed.
4. Three of the four garage heaters are inoperative.
5. Various areas of the garage had water accumulation at the
time of inspection.
6. The sixth floor is peeling paint and plaster.
In the order issued on May 27, 1988 the Administrator determined that the
owner had failed to maintain services, directed a restoration of services
and further directed a rent reduction by the most recent guidelines
adjustment effective December 1, 1987.
In this petition the owner asserts the following:
1) Based on the owner's answer submitted to the Administrator,
the DHCR should have consolidated the complaints for all the
buildings in the complex and should have held the complaints
in abeyance while the owner was in the process of resolving
the issues in good faith directly with the tenants, and
that, alternatively, the owner, pursuant to its request,
should have been afforded an opportunity to submit a
supplemental answer.
2) The owner was not notified of the inspection, nor has the
owner seen a copy of the inspection report. The owner
requests a copy of the inspection report in order to be able
to respond to its contents.
3) The order issued under Docket Number BH 110170-B is
inconsistent with the order in this case.
4) At all relevant times, all services were being provided or
maintained.
5) The conditions reported were isolated temporary occurrences
requiring only minor repairs that do not warrant a rent
reduction.
DOCKET NUMBER: CG 130027-RO
6) The penalty of a rent reduction is unwarranted because it
bears no reasonable relationship to the conditions reported.
7) The Administrator's order is predicated on a single
inspection with no showing as to how long the alleged
conditions existed and is therefore not supported by
sufficient evidence.
8) The Administrator improperly reduced the rent for all
tenants who signed the complaint even though certain items
are not building wide and do not affect all the tenants.
Only two of the fourteen complaint tenants rent garage
spaces. Only three of the fourteen tenants have apartments
on the sixth floor. Moreover, the finding that the sixth
floor has peeling paint and is in need of painting should
not be included in the order because it was not listed in
the tenants' complaint and because the sixth floor was
freshly painted and plastered prior to the date of issuance
of the Administrator's order.
9) Regarding the specific conditions the owner asserts that the
roof doors and elevator are in good working order and are
properly maintained and any problems were promptly
repaired; that the garage heaters do not constitute a
required service and that, in any event, the garage is kept
adequately heated; and that with respect to water
accumulation in the garage, while the owner asserts that
this does not constitute a decrease in services, the owner
intends to repair or install a new roof on the garage. The
owner also asserts that the due to repeated vandalism over
the years, the playground became dismantled, that the owner
is willing to provide the tenants with substitute facilities
and that the owner is negotiating with the tenants directly
on this issue.
The Commissioner is of the opinion that this petition should be granted in
part.
Section 2523.4(a) of the Rent Stabilization Code, provides that
A tenant may apply to the DHCR for a reduction of the legal
regulated rent to the level in effect prior to the most recent
guidelines adjustment, and the DHCR shall so reduce the rent for
the period for which it is found that the owner has failed to
maintain required services.
Required services are defined in Section 2520.6(r) to include repaired and
maintenance.
The Commissioner finds that the Administrator was not obliged to
consolidate the various services complaints for all the buildings in the
complex since the various complaints involved different buildings and
different tenants.
The Commissioner finds that the Administrator was not obligated to hold
the tenants complaints in abeyance based on the owner's statements that it
DOCKET NUMBER: CG 130027-RO
was in the process of resolving the issues with the tenants; nor was the
Administrator obligated to afford the owner an opportunity to submit a
supplemental answer or to notify the owner of the inspection or inspection
report. The owner was notified of the tenants' complaint, afforded an
opportunity to respond, and given a reasonable time within which to
effectuate repairs. There is no requirement that the owner be sent a copy
of the inspection report and the Commissioner has so held in the past.
(Accord: ARL 11199-U).
The owner's assertions that services were being provided or maintained at
all relevant times is disproved by the inspection report which constituted
sufficient evidence for the Administrator's finding of a decrease in
services and directive of a rent reduction in accordance with Section
2523.4(a) of the Code. Regarding the owner's assertion that the
conditions reported were isolated temporary occurrences requiring only
minor repairs not warranting a rent reduction, the Commissioner finds that
the conditions reported in this case affect the security, safety and
comfort of the tenants and constitute a decrease in services, even though
some of the conditions may require only minor repairs. In addition, the
dismantling of the playground certainly cannot be described as an isolated
temporary occurrence requiring only minor repairs.
Regarding the owner's assertion that the garage heaters do not constitute
a required service, the Commissioner finds that the owner failed to raise
this issue during the proceeding below and may not raise it for the first
time on administrative appeal. The Commissioner notes that it is
undisputed that the garage heaters have been provided by the owner on or
after the base date and therefore the garage heaters constitute a required
service.
Regarding the owner's assertion that only two of the fourteen complaint
tenants (A.D'Meia, apt, 4K & J. Little, apt 6D) rent garage spaces, the
Commissioner finds that the Administrator's findings as to the garage,
i.e., inoperative heaters and water accumulation, apply only to the two
affected tenants and those particular findings can serve as a basis for a
rent reduction only for those tenants.
A review of the record in this case confirms the owner's assertion that
the tenants failed to include a complaint of peeling paint and plaster on
the sixth floor in their original complaint. Therefore the Commissioner
finds that this condition should not have been part of the inspection and
should not have been included by the Administrator as a basis for a rent
reduction. The Administrator's order is hereby modified to eliminate this
condition from the list of decreased services.The Commissioner notes that
the owner filed two rent restoration applications, Docket Numbers DB
110112-OR and DJ 1100640-OR, which were denied by orders issued on August
14, 1989 and August 22, 1990, respectively. The owner filed a third rent
restoration application with the DHCR, Docket Number EK 110225-OR, which
is currently pending.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it is
DOCKET NUMBER: CG 130027-RO
ORDERED, that this petition be and the same hereby is granted in part and
the District Rent Administrator's order be and the same hereby is
modified to the extent hereinabove indicated.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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