DE410249RO
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.:
DE410249RO
Columbus Property Co.,
RENT ADMINISTRATOR'S
DOCKET NO.:
BD430086B
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 31, 1989, the above-named petitioner-owner timely refiled a
petition for administrative review (PAR) of an order issued on
December 18, 1987, by the Rent Administrator, concerning the
housing accommodations known as 326 Columbus Avenue, New York,
N.Y., wherein the Administrator determined that a reduction in rent
was warranted based upon a reduction in services.
The Rent Administrator also directed full restoration of services.
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 administrative appeal.
The issue herein is whether the Rent Administrator properly reduced
the rent of the subject apartment based upon a diminution in
services.
On April 30, 1987, the tenants filed a building-wide complaint
alleging that the owner failed to maintain services throughout the
subject building.
The owner filed an answer to the complaint, on May 16, 1987,
alleging that the apartment numbers were removed as a security move
and that tenants may add their apartment numbers to the door-bell
intercom board if they so choose. The owner further alleged that
the superintendent provides all required services and that the
complaint was filed as a ploy to prevent eviction proceedings from
being instituted against the tenant of apartment 4-J.
A DHCR inspection conducted on September 23, 1987, revealed that
the apartment numbers have been removed from the door-bell intercom
DE410249RO
board and that the self-closing door was not working properly.
On appeal, the petitioner-owner asserted, in pertinent part, that
the Civil Court (Housing Court) Order, under Docket No. L & T
64237/87, dated July 8, 1987 which granted the tenant a rent
abatement of 10% of rent due the owner is "res judicata" on these
proceedings because the tenant has already received a 10% rent
reduction by the Court and is thus not entitled to an additional
rent reduction ordered by the Rent Administrator for the same
service deficiencies. The owner also states that the apartment
numbers were replaced and the self-closing door was repaired long
before the Rent Administrator's order was issued.
The petition was served on the tenant on September 8, 1989 and on
September 28, 1989, the tenant filed an answer to the petition
stating that the owner did not correct the service deficiencies and
the court decision affected only the subject apartment and did not
address a building-wide service complaint as does the instant
appeal.
After a careful consideration of the entire evidence of record the
Commissioner is of the opinion that the administrative appeal
should be denied.
Pursuant to Section 2523.4(a) of the Rent Stabilization Code, a
tenant may apply to the Division of Housing and Community Renewal
(DHCR) for 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
repairs and maintenance.
The Commissioner has considered and rejects the petitioner's claim
on appeal that the required repairs were made prior to the issuance
of the Rent Administrator's order.
A copy of the tenants' complaint, specifying all deficiencies noted
in the appealed order was mailed to the owner on May 12, 1987 and
the Rent Administrator's order was issued on December 18, 1987.
It is apparent that the owner had approximately seven months to
attend to the complained-of conditions, but had failed to do so
prior to the issuance of the Rent Administrator's order.
The inspector's report clearly showed that even if the owner
attempted to correct the conditions prior to the issuance of the
Rent Administrator's order, it had failed to do so in a workmanlike
manner.
DE410249RO
The Commissioner also notes that the owner admitted in the PAR that
apartment numbers were removed and subsequently replaced and that
the self-closing door required repairs during the pendency of the
Civil Court action.
To the extent that the rent reduction order issued by DHCR and the
rent abatement granted by the Housing Court reduce the tenant's
rent for the same period of time for identical conditions, the
tenant may not collect twice. Since the reduction ordered by DHCR
is limited to a guideline regardless of the seriousness of the
condition, while the Court can order an abatement in any amount,
the Court's remedy takes precedence. The Division's order,
however, is affirmed as a prospective rent reduction and
retroactively for any month not covered by the court ordered
abatement.
Accordingly, the Commissioner finds that the owner has offered
insufficient reason to disturb the Rent Administrator's
determination.
The Commissioner finds, that the Administrator properly based his
determination on the entire record, including the results of the
on-site physical inspection conducted on September 23, 1987, and
that pursuant to Section 2523.4(a) of the Code, the Administrator
was authorized to reduce the rent upon determining that the owner
had failed to maintain services.
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.
Upon a restoration of services, the owner may separately apply for
rent restoration.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, denied and
the Administrator's order be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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