DHCR Decisions
Docket Number: CA-130166-RO
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.: CA 130166-RO
:
KREISEL COMPANY, INC., DRO DOCKET NO.: BG 110011-B
PETITIONER :
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ORDER AND OPINION GRANTING IN PART PETITION FOR ADMINISTRATIVE REVIEW
AND IN REMANDING PROCEEDING
On January 13, 1988, the petitioner-owner filed a Petition for
Administrative Review against an order issued on December 10, 1987 by the
Rent Administrator, 92-31 Union Hall Street, Jamaica, NY concerning the
housing accommodations known as 215-40 47th Avenue, Bayside, New York,
various apartments.
The instant matter stems from a multiple tenants' complaint of decreased
services filed with the Division on July 1, 1987 alleging, among other
things, the elimination of both a playground and sitting area with benches
and that the incinerator was removed.
On September 15, 1987 a notice of the tenants' complaint was mailed to
the petition-owner. No response was received thereto.
On October 13, 1987 a physical inspection was conducted of the subject
address the report of which disclosed that: 1) the incinerator doors were
locked, 2) "playground area [is] eliminated" and 3) "no benches in
development."
The herein appealed order of the Rent Administrator reduced the stabilized
rent based on the aforementioned inspection.
In its petition for administrative review the owner contends, among other
things, that it had no record of being served with this complaint, thus
resulting in a denial of due process. Further, addressing the merits of
the tenants' complaint, as reflected in the Administrator's order, the
owner contends, in substance, that incinerator service was discontinued
more than 15 years ago in compliance with prevailing Law (excerpts of
which were submitted with the petition) under which owners of buildings
with fewer than 40 apartments per incinerator chute were permitted to seal
incinerators upon a showing that upgrading would not be practical; that a
formal playground or sitting area with traditional playground fixtures,
sports facilities or benches was never a provided service; that a "black
top" area was replaced by a lawn which serves the same functional purpose
and is aesthetically more pleasing; and that absent independent evidence
that benches or a playground were eliminated it was error for the
Administrator to have reduced the rent for these items.
In answer thereto the tenant of apartment 3-D states, in substance, that
the owner's present procedure for refuse removal, whereby tenants must
bring their garbage to a designated basement room, which room is kept
locked during the night, is both unsightly and unhealthy; and that he
Docket Number: CA-130166-RO
"grew-up" living within the development and has personal knowledge of the
fact that the center courtyard (now converted to a lawn) contained two
small playgrounds and benches.
In its reply, the owner states that the basement refuse room is kept
locked between the hours of 8:00 p.m. and 7:00 a.m. for security reasons;
that "anyone wishing to dispose of refuse in the late hours of the
evening or the wee hours of the morning may leave neat bags beside the
basement door so they can be brought in by building employees"; that the
Administrator's order is predicated on the incinerator door being locked,
not due to a lack of cleanliness; and that having providing a suitable
substitute services, a reduction in rent is inappropriate. In addition
the owner submitted the affidavit of a managing partner of the owner of
the subject premises to the effect that playground facilities were never
provided during the approximately 30 years he owned or had an interest in
the subject premises; and that such facilities were not provided on the
1968 base date for stabilized apartments.
After a careful consideration of the entire record, as amplified on
appeal, the Commissioner is of the opinion that this petition should be
granted in part and the proceeding remanded to the Rent Administrator for
further processing in accordance with this order and opinion.
At the outset the Commissioner notes that Division records disclose that
the subject premises constitutes part of a housing complex consisting of
six buildings each of which has been divided in three separate units with
each unit being assigned a separate mailing address. The records of the
Division further disclose that similar service complaints were filed by
other tenants throughout the complex, which complaints were responded to
by the owner in detail in the respective proceedings before the
Administrator. (The Administrator's determinations therein were not the
subject of administrative appeal by either the owner or the tenants.)
Accordingly, the Commissioner accepts as credible the owner's assertion
that it would have responded in kind had it received notice of the instant
complaint in the proceeding below.
Notwithstanding the foregoing, the Commissioner is of the opinion that a
reduction in rent is warranted after giving consideration to the the
owner's submissions on appeal, as in the matter of Parkchester Management
Corp. (ARL 5219-B) cited by the owner on appeal and where additional fact
finding is not required, as in the matter of 1840 Realty Co. (ARL 2398-B)
also cited by the owner. It is undisputed that garbage disposal via
incinerator was a service provided to the subject premises on the May 1968
base date for required building-wide services. The conceded
discontinuance of incinerator service and the failure of the owner to
provide an adequate substitute service to the tenants warrants a reduction
in rent in accordance with established Division policy and the policy of
the former New York City Conciliation and Appeals Board (DG 830193-RO).
Docket Number: CA-130166-RO
The CAB held that where an owner was required to discontinue a service or
facility pursuant to an order of another regulatory agency, the owner was
not relieved of its obligations under the Rent Stabilization Law and Code.
Such rulings were sustained by the courts (Mehlman Management Corp. v.
CAB, N.Y.L.J., June 6, 1972, p.2 col. 3 (Sup. Ct., Queens Co.,
Fitzpatrick, J.); Sherwood Associates v. CAB, N.Y. Co., Helman, J.). In
situations somewhat analogous to that involved in the instant matter,
where the owners attempted to comply with New York City Local Law 14
(cited as justification by the owner herein) by shutting down incinerators
and placing garbage cans on the street, in the basement or in the rear
courtyard, the CAB required door-to-door or floor-by-flo r garbage pick-
up, ruling that the tenants were entitled to a level of service equivalent
to that provided on the base date (Accord: CAB Opinion Nos. 2411, 2917,
3663, 3920, 4346 and 5595).
Moreover, the Board held, under circumstances similar to those involved in
the instant proceeding, that the discontinuance of incinerator service
pursuant to, and with the consent of the appropriate municipal agency does
not constitute a diminution of required services, provided the owner
furnishes an adequate substitute service not requiring the tenant to leave
his or her floor to dispose of his or her refuse. (CAB Opinion Nos. 3088,
8130 et seq.). In Opinion No. 14,080, the CAB found that the method of
garbage collection provided by the owner in said proceeding after it had
discontinued incinerator service, that being placing garbage receptacles
in each of the previous incinerator refuse rooms, was an adequate
substitute.
In the instant proceeding it is conceded that the owner has replaced
incinerator service with a method of garbage disposal which requires a
tenant to leave his or her floor and to carry their refuse to the
basement storage area which is kept locked between the hours of 8:00 p.m
and 7:00 a.m. This clearly does not constitute an adequate substitute
service. Accordingly, the Commissioner finds that there has been a
reduction in required garbage disposal service for which the Administrator
properly reduced the stabilized rents of the subject accommodation.
However, since the owner did not have notice of the instant complaint
until receipt of the order appealed herein, the Commissioner deems it
appropriate to modify said order by changing the effective date of said
rent reduction to January 1, 1988, the first rent payment date after
issuance of said order.
However, in view of the sharply conflicting allegations of the owner and
tenants with respect to the elimination of a playground area and benches
and since a physical inspection which merely discloses the absence of said
facilities is not dispositive of the issue, the Commissioner deems it
appropriate to remand this proceeding to the Rent Administrator for such
further processing as may be deemed necessary, which may include a
hearing on notice to the parties, in order to resolve the issue of whether
or not such facilities are required base date services.
THEREFORE, in accordance with the provisions of the Rent Stabilization
Code, it is
Docket Number: CA-130166-RO
ORDERED, that this petition be, and the same hereby is granted in part to
the extent of remanding this proceeding to the Rent Administrator for
further processing in accordance with this order and opinion. The order
and determination of the Rent Administrator remains in full force and
effect, except as to the effective date of the rent reduction ordered
therein which is changed to January 1, 1988 (rather than October 1, 1987),
until a new order is issued upon the remand.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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