HC430193RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NY 11433
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
HC430193RO
East 11th Street Assoc.,
RENT ADMINISTRATOR'S
DOCKET NO.:
ED430058B
PETITIONER
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ORDER AND OPINION GRANTING, IN PART, PETITION FOR ADMINISTRATIVE
REVIEW, REVOKING IN PART, RENT ADMINISTRATOR'S ORDER, AND
REMANDING, IN PART, PROCEEDINGS TO RENT ADMINISTRATOR
FOR FURTHER CONSIDERATION
The above-named owner filed a timely petition for administrative
review of an order issued on February 9, 1993, concerning the
housing accommodations known as 318 East 11th Street, New York,
New York, wherein the Rent Administrator determined the tenants'
complaint of a decrease in building-wide services.
Subsequent thereto, the owner filed a petition in Supreme Court
pursuant to Article 78 of the Civil Practice Law and Rules in the
nature of a deemed denial. The matter was remitted to the
Division, on consent, for an expeditious determination of the
owner's administrative appeal.
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.
In April, 1990, the tenant(s) of Apartment 8 individually commenced
the proceedings by filing a complaint asserting that the owner had
failed to maintain certain services. No other tenants joined in
the complaint, which was assigned ED430058B for case processing.
In May 1990 the owner filed an answer denying the allegations set
forth in the complaint, or otherwise asserting that all required
conditions had been or would be corrected.
In June 1990, the tenant of Apartment 12 also filed a complaint.
Only the tenant signed the complaint. While the box for a
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supplemental signature and affirmation form was checked, no
supplemental signature and affirmation form was included with the
tenant's statement. Instead, the complaining tenant indicated that
one would be sent under separate cover. The complaint was assigned
EF430080B for case processing. The complaint was served on the
owner on July 11, 1990. While the supplemental signature and
affirmation form appears to have been submitted to the Rent
Administrator shortly thereafter stamped received on July 27, 1990,
there is no evidence that it was served on the owner. The owner
responded to the complaint, as before, denying the allegations or
otherwise asserting that all required conditions had been or would
be corrected.
In both cases, the owner noted a change of address for the owner's
managing agent.
On April 9, 1991, the owner advised the Rent Administrator that the
owner and the tenant of Apartment 12, represented by their
respective attorneys, had resolved Housing Court proceedings
between them by a Stipulation of Settlement dated April 8, 1991,
signed by their respective attorneys, and which was so ordered by
the Court. The Stipulation provided, in pertinent part, that:
Respondent [tenant] is hereby granted a twenty-five
percent (25%) abatement or $1850.00 reducing amount owed
to $5550.00. The abatement in settlement of all claims,
counterclaims, defenses raised by Respondent herein & at
DHCR to date. Respondent hereby consents to withdraw his
pending complaints at DHCR with prejudice and that this
stipulation may be filed thereafter as notice of
discontinuance. (21365HL,21191HL) as to services and
repairs....Notwithstanding the above tenant alleges the
following need for repairs and landlord consents to
inspect and as necessary to repair:
1) Tenant alleges leaks from outside bricks.
* * * *
5) Clean halls at least once a week and remove
garbage that may appear in front of building.
Tenant alleges no other repairs....Repairs to be
completed within thirty (30) days....
On June 3, 1991, the Rent Administrator ordered consolidation of
both cases under ED430058B. The order was mailed to the
complaining tenants (Apartments 8 and 12) and eleven other tenants
whose signatures were listed on the photocopy of the supplemental
signature and affirmation form.
One of the signatures on this supplemental signature and
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affirmation form appears to be the signature of a rent controlled
tenant.
Both the complaints asserted, in pertinent part, that the halls
were rarely clean and were left unswept for months, that the
exterior brick work was neglected, that there was loss of mortar
between bricks on the east outer wall which was unpointed, and that
there were water leaks.
On August 29, 1991 the DHCR conducted an inspection of the subject
premises. In pertinent part, the DHCR inspector reported that the
interior public areas were in need of washing, defective painting
on the east side of the building, bricks cemented over in various
areas and cement falling off. The owner was advised of the results
of the inspection, and was requested to provide additional
information. The request, sent to the owner's managing agent's
prior address, was returned as not forwardable.
On March 18, 1992 the tenant of Apartment 12 submitted a voluminous
reply disputing the owner's claim of repairs. Among other things,
the tenant included Housing Court papers that the tenant had
petitioned in Housing Court for an Order to Show Cause seeking to
construe and modify this Stipulation of Settlement with the owner,
so as to repudiate that part wherein the tenant consented to
withdraw the pending services complaints at DHCR, and requesting
that the matter be set down for a trial due to the owner's alleged
failure to comply with the terms of the Stipulation. However, the
tenant did not indicate whether or not the proceedings initiated
per the Order to Show Cause had been resolved. New allegations
made by the tenant were not considered, in light of the fact that
an inspection had already been conducted.
In an answer to a second request for additional information, dated
May 12, 1992, mailed to the owner's managing agent at the correct
address, the owner responded, in substance, that services were
provided and that all repairs were completed. Reinspection on
October 9, 1992, showed that hallways were dirty and that there was
mildew on the public hallway and ceiling area between the fifth and
sixth floor landings.
On February 3, 1993, the Rent Administrator issued an order
reducing the rent for stabilized and controlled tenants based on
the results of the last inspection.
In the petition for administrative review, the owner requests that
the Rent Administrator's order under ED430058B be revoked, alleging
various procedural and substantive irregularities.
The owner contends it never received and was not properly served a
copy of the rent reduction order, which would presumably have had
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annexed to it a list of all tenants affected by the order.
The owner also asserts that only the tenants of Apartments 8 and 12
signed their respective complaints, and that there were no other
signatures, at least as far as those documents served upon and
received by the owner. The owner contends that no supplemental
signature and affirmation form was received by the owner and, that
it obtained the order under ED430058B only because one of the
tenants presented the order to the owner. The owner also states a
belief that some of the signatures were fraudulent or were obtained
under false pretenses.
The owner further contends that the tenant of Apartment 12 had
agreed to withdraw his services complaint per the Housing Court
Stipulation of Settlement, so ordered by the Court.
In addition to the above, the owner argues that the Rent
Administrator's findings were improper, citing various alternative
grounds. The owner contends that the cleaning of hallways and
removal of mildew are part of routine maintenance and not required
services upon which a rent reduction may be based, that the owner
was not sufficiently apprised of these conditions in the complaint
or apprised that the items were cited in an inspection, and that
only a few tenants were affected by the mildew condition and/or
should have received a rent reduction for it.
After careful consideration, the Commissioner is of the opinion
that the owner's petition should be granted in part, that the Rent
Administrator's order should be revoked, in part, and that the
matter should be remanded, in part, to the Rent Administrator for
further consideration, as more fully set forth below.
Only those rent stabilized tenants who sign a complaint of
decreased services may receive a rent reduction based on a finding
of a reduction of building-wide services. Rent controlled tenants
may receive a rent reduction predicated on a reduction of building-
wide services, if at least one rent controlled tenant signed.
To the extent that the tenants of Apartment 8 and 12 signed their
complaints, and as these complaints were served on the owner, who
filed answers to the complaints, there was adequate notice to
permit further processing of the complaints as to them. The
conditions cited in the complaint gave the owner sufficient notice
of defective conditions, cited in the second inspection report,
which provided the basis for the rent reduction. The conditions
cited in the rent reduction order were directly related or resulted
from the problems cited in the tenants' complaints. Additionally,
the complaints were investigated in accordance with the DHCR's
procedures.
However, the record does not establish that the owner was served
the supplemental signature and affirmation form. The tenant in
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Apartment 12 filed the complaint individually and indicated that
the supplemental signature and affirmation form would be submitted
under separate cover. The case files contain only a photocopy of
the supplemental signature and affirmation form and there is no
record of a cover notice or Rent Examiner's notation that the form
was served on the owner in either proceeding.
In that the owner had notice of the complaint by the tenant of
Apartment 8, that the conditions cited therein were confirmed by
inspections, and that the conditions confirmed upon inspection were
proximately related to the complaint, the Rent Administrator's
order with respect to Apartment 8 is affirmed.
To the extent that there is insufficient evidence to establish that
the owner was properly served the supplemental signature and
affirmation form, the rent reductions were invalid as to those
tenants whose signatures were apparently entered on the the
supplemental signature and affirmation form but not on the
complaint, and must be revoked, and the full legal regulated rent
reinstated.
However, in light of the fact that the record of the proceedings
does contain a copy of the supplemental signature and affirmation
form, apparently signed by various tenants, they are entitled to
consideration by the Rent Administrator as to whether their
signatures were valid and were properly submitted and served, so as
to warrant action in the complaint as to them.
Consequently, the proceedings should be remanded to the Rent
Administrator for further consideration of the complaint and the
record, as to the rent stabilized and rent controlled tenants that
signed the form and to the remaining rent controlled tenants. The
Rent Administrator shall also consider the owner's allegations that
some, if not all, of the signatures may be false or were obtained
under false pretenses. The tenants whose signatures are found to
be true, but who may assert they did not knowingly sign the
complaint should be afforded the opportunity to withdraw from the
proceedings. If any signatures are found to be false, no further
consideration shall be warranted as to them in these proceedings.
The tenants affected are from Apartments 1, 2, 4, 5, 6, 7, 9, 10,
11, 13, 14, 15 and 16.
A copy of the Rent Administrator's order, as well as of the
supplemental signature and affirmation form shall be annexed with
and fully made a part of this order. Unless it is established on
remand that the owner was properly served the supplemental
signature and affirmation form, the issue date of this order shall
serve as the basis for determining the effective date of the rent
reduction for the conditions that have not been corrected.
The owner established below that the tenant of Apartment 12 had
stipulated in Court to withdraw DHCR services complaints. The
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Stipulation set forth, in pertinent part, that "this [rent]
abatement is in settlement of all claims, counterclaims, and
defenses raised by Respondent [tenant] herein and at DHCR to
date...."
The Rent Administrator's determination that the provisions of the
Stipulation, prepared by the parties' attorneys, were inclusive,
and also contemplated the service complaints, was reasonable and
should be affirmed. The tenant stated below that he had petitioned
in Housing Court for an Order to Show Cause specifying further
action in connection with the Stipulation of Settlement but the
record does not show the outcome of those proceedings. Since it
appears that the Stipulation remains in full force and effect, the
rent reduction is also revoked and the legal regulated rent is
reinstated as to the tenant of Apartment 12. If it is established
on remand that the Stipulation of Settlement became void or
voidable, the Rent Administrator may consider reinstatement of the
rent reduction for this tenant, in whole or in part, as the facts
may warrant.
This order is without prejudice to the tenants' right to apply for
a rent reduction based on current services decreases.
The reduced rent will be restored as to the tenant of Apartment 8
only when an owner's application to restore rent is filed and
granted. The owner is advised to file an application if the facts
so warrant.
The collection of any rent arrears due the owner as a result of
this determination is stayed pending issuance of a new order by the
Rent Administrator on remand.
THEREFORE, pursuant to the Rent Stabilization Law and Code, and the
Rent and Eviction Regulations, it is
ORDERED, that the owner's petition for administrative review is
granted, in part, to the extent that the Rent Administrator's rent
reduction order be revoked and the proceedings remanded for further
consideration as to the tenants in Apartments 1, 2, 4, 5, 6, 7, 9,
10, 11, 12, 13, 14, 15, 16, in accordance with the above. It is
further
ORDERED, that the Rent Administrator's order be and the same hereby
is affirmed as to the tenant of Apartment 8.
HC430193RO
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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