DC130089RO
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.: DC130089RO
VISUTTON MANAGEMENT/ RENT
ANITA OWNER'S INC. ADMINISTRATOR'S DOCKET
NO.: BI110068B
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART, MODIFYING RENT ADMINISTRATOR'S ORDER AND REMANDING
PROCEEDING TO RENT ADMINISTRATOR
On March 3, 1989 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued February 14, 1989. The order concerned various
housing accommodations located at 99-40 63rd Road, Rego Park, N.Y.
The Administrator directed restoration of services and ordered a
rent reduction for failure to maintain required services.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
This proceeding was commenced on September 30, 1987 when 47 of
the 185 tenants joined in filing a Statement of Complaint of
Decrease in Building-Wide Services wherein they alleged, in
substance, that the owner was not maintaining certain required
services including peeling paint and plaster in the public areas,
leaking roof, infestation of roaches and water bugs, garbage
accumulation throughout the public areas, defective elevator,
graffiti in elevator, inoperative lobby side entrance door locks,
lobby furniture removed and never replaced, and missing names from
the bell and buzzer system and mailboxes.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on September
30, 1988 and stated, in substance, that the conditions stated in
the complaint did not exist or that repairs had been made. The
Commissioner notes that the owner specifically denied that lobby
furniture was a base date service required to be maintained.
The Administrator ordered a physical inspection of the subject
DC130089RO
apartment. The inspection was conducted on November 7, 1988 and
revealed the following:
1. Peeling paint and plaster in public areas due to
roof water seepage leaks,
2. Wall paper in public areas is torn and ripped and
exit lights were off,
3. Evidence of vermin accumulation and the incinerator
rooms are filled with garbage accumulation,
4. Elevator fans inoperative and there is evidence of
graffiti on elevator doors,
5. Lobby side entrance door locks inoperative,
6. Lobby furniture removed by owner and never
replaced,
7. Evidence of missing names on bell and buzzer system
and over mailboxes.
Other services were found to have been maintained.
The Administrator issued the order here under review on
February 14, 1989 and ordered a reduction of the stabilized rents
based on the report of the inspector.
On appeal the owner states that it purchased the building in
August, 1988, that it was not made aware of the complaint by the
prior owner, that, when it was made aware of the complaint, it
immediately answered and proceeded to make extensive repairs, that
it should not be responsible for any rent reduction preceding the
time it took ownership of the building, that the roof was repaired,
that the public areas were completely painted and plastered, that
a professional exterminator is employed and visits the building
twice a month, that garbage is removed on a daily basis, that the
elevator fans operate properly, that the elevator graffiti has been
removed, that the lobby door is properly locked, that the lobby
furniture was never a service required to be provided, and that any
lack of tenant names on the bell and buzzer system or mailboxes are
due to vandalism. The petition was served on the tenants on May
10, 1989.
Various tenants filed responses to the petition and stated, in
substance, that the owner had not restored services and that the
order here under review should be affirmed.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be granted
in part and the order here under review should be affirmed as
DC130089RO
modified herein except with regard to the issue of lobby furniture.
With regard to all issues except the wallpaper, exit lights,
elevator and lobby furniture, the Commissioner notes that pursuant
to Section 2523.4 of the Rent Stabilization Code, the DHCR is
mandated to order a rent reduction, upon application by a tenant,
based on a finding of failure to maintain required services.
Repairs and maintenance are within the statutory definition of
required services. The Commissioner finds that the Administrator
properly based this determination on the record including the
report of the on-site physical inspection conducted on November 7,
1988 by a DHCR employee who is neither a party to this proceeding
or an adversary. The owner has not offered any evidence to rebut
the inspector's report regarding all but the three conditions set
forth above.
With regard to the wallpaper and exit lights, the Commissioner
has reviewed the complaint and finds that the tenants did not
complain about these conditions. Due process requires that an
owner be notified of the services not being maintained so that it
may have an opportunity to investigate and correct any
deficiencies. Since the Administrator ordered a rent reduction, in
part, based on conditions that were not cited by the tenants, the
findings regarding the wallpaper and exit lights are revoked.
With regard to the elevators the Commissioner acknowledges
that the enforcement of applicable standards regarding elevator
operation and safety is under the jurisdiction of the New York City
Department of Buildings, which has long established, comprehensive
procedures and inspection programs in place. The staff engaged in
carrying out these programs has the necessary technical expertise
to conduct periodic inspections; to interpret and apply relevant
codes, regulations and industry standards and to issue violations.
Further, in view of the City's greater experience with elevator
enforcement, the City is in a better position that the DHCR to
determine appropriate performance standards and ancillary equipment
for elevators of varying age and manufacture.
The Commissioner notes that a search of the Department of
Building records has revealed that no violations regarding elevator
operation were issued while the complaint was pending before the
Administrator. Therefore, the Commissioner finds that sufficient
evidence does not exist to support the Administrator's finding
regarding the elevator. This finding must, therefore, also be
revoked.
Finally, with regard to the lobby furniture reported to be
missing, the record reveals that the Administrator failed to
investigate whether or not lobby furniture is a required base date
service despite the fact that the owner raised the issue in the
response described above. Instead, the Administrator instructed
the inspector to investigate whether the furniture had been removed
DC130089RO
and, if so, when the owner did so. The inspector reported that
"There is no lobby furniture in either building lobby." This
report was the sole basis for the Administrator's finding.
The Commissioner is of the opinion that further investigation
is required to determine if the owner is required to maintain lobby
furniture. Accordingly, this proceeding is remanded to the
Administrator for further processing consistent with this order and
opinion, including the holding of a hearing if the facts so warrant
on the issue of the nature and extent of lobby furniture provided
on the applicable base date. On remand, the Administrator should
also determine whether this service, if required, has been restored
and, if so, order rent restoration.
The Commissioner notes that the owner's rent restoration
application (Docket No. DC130030OR) has been granted.
The order here under review which ordered a rent reduction for
the rent stabilized tenants who joined in the filing of the
complaint is affirmed as modified herein. 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.
THEREFORE, pursuant to the Rent Stabilization Law and Code it
is
ORDERED, that this petition be, and the same hereby is,
granted in part, and that the Rent Administrator's order be, and
the same hereby is, affirmed as modified herein with regard to all
issues other than whether or not the owner is required to maintain
lobby furniture and it is further.
ORDERED, that this proceeding be, and the same hereby is,
remanded to the Rent Administrator for further processing
consistent with this order and opinion.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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