DHCR Decisions
Docket No.: EB 430088 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.: EB 430088-RO
PERRY MANSIONS, DISTRICT RENT ADMINISTRATOR'S
DOCKET NO.: DB 430035-B
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 5, 1990, the above-named petitioner-owner filed a
Petition for Administrative Review against orders issued on
January 16, 1990, by the Rent Administrator at Gertz Plaza,
Jamaica, New York, concerning the housing accommodations known as
220 Waverly Place, New York, N.Y. wherein the Administrator
reduced the tenants' rents based on a finding of a reduction of
building-wide services.
The issue in these proceedings is whether the Administrator's
orders were proper.
The applicable law is Section 2202.16 of the Rent and Eviction
Regulations and Section 2520.6(r) and 2523.4 of the Rent
Stabilization Code.
The tenants commenced these proceedings on February 13, 1989, by
filing a joint complaint alleging decreases of various building
wide services. The tenants complained that heat and hot water was
unavailable between 8:00 P.M. and 8:00 A.M.; that cleaning of
public areas had been sporadic; that the front door lock was not
secure from entry without a key, despite recent repairs; that the
roof door lock was secured by a hook and latch device only; that
repairs to the third floor stairway bannister had created an
unsafe condition; and that there was a loose step on the third
floor stairway.
An inspection conducted on November 6, 1989 by a number of the
Division's inspection staff confirmed that the roof door had a
hook and eye latch, which could be opened from the exterior
because the door was not blumb with the door jamb, leaving a space
between the jamb and door. However the inspection revealed other
services to be maintained adequately, in that the vestibule door
lock was secure, the public areas were clean, there was no problem
with the third floor bannister, and there was no evidence of loose
steps.
On January 16, 1990, the Administrator issued orders reducing
rents by $6.00 for rent controlled tenants based on the finding
that the roof door had a hook and eye lock which could be opened
from the exterior due to the space between the door and the door
jamb, and that the roof door was not self-closing. The rents for
Docket No.: EB 430088 RO
rent stabilized tenants were reduced by the percentage of the most
recent guidelines adjustment for each tenant's lease which
commenced before the effective date of the rent reduction,
March 1, 1989.
On appeal, the petitioner argues that the condition involving a
space between the roof door and the door jamb and lack of a self-
closing roof door did not constitute a reduction of service; that
the problem was not mentioned in the complaint; and that the owner
was denied due process as the owner was not given notice of an
inspection, or opportunity to present evidence at the inspection
or thereafter, nor served a copy of the inspection report nor
provided the opportunity to cross-examine the inspector.
Additionally, the petitioner points to a court ordered
stipulation with one of the signatories to the complaint, wherein
that tenant withdrew his complaint with prejudice.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
City Ordinances expressly permit the use of a hook and eye latch
closing device on the inside of roof doors. While the tenants'
complaint below claimed only that the hook and eye latch device
was insufficient to secure the roof door, the Commissioner is of
the opinion that the tenants' complaint sufficiently alerted the
owner to a possible lack of security warranting the owner's
attention.
The inspector's report of the presence of space between the door
and the door jamb confirmed a condition constituting a lack of
security amounting to a reduction of service. The fact that the
inspection report did not specify the amount of space between the
door and jamb is of no consequence as the mere existence of space
rendered the premises insecure. The inspector also reported that
the roof door was not self-closing. Local ordinances require roof
doors to be self-closing swinging doors.
The Commissioner is of the opinion that a roof door which does not
fit into the door jamb, and the absence of a self-closing roof
door constitute conditions reflecting a serious lack of security.
PAR Docket No. BF 230260-RO, cited by the petitioner, wherein the
Commissioner disallowed an improperly installed wire hook on the
roof door as a basis for a rent reduction, did not reflect the
serious conditions present below.
Docket No.: EB 430088 RO
The Commissioner also rejects the petitioner's argument of a
denial of due process for failure to serve notice of the
inspection, to have the owner present at the inspection, to
provide copies of the inspection report, or to provide the owner
the opportunity to cross-examine the inspector.
The Division's procedure do not require the Division to give
parties notice of the inspection, unless, in the Division's
discretion, their presence is required, nor to apprise the parties
of the results. With regard to the request to cross-examine the
inspector, the Commissioner notes that the Regulation do not
require the Administrator to provide the owner such an
opportunity. All that due process requires is that reasonable
opportunity be afforded the parties and that they have opportunity
to present their objections. The owner's vigorous arguments below
establish that the owner was afforded such an opportunity. The
Commissioner further notes that the inspection report, prepared by
a rent agency employee not a party to the proceeding and not an
adversary to the owner, was properly placed in the record for
consideration by the Administrator. In this regard, the
Commissioner notes that the record was available to the parties,
after the Administrator's order issued, by a proper written
request pursuant to the Freedom of Information Law (FOIL).
The fact that one tenant relinquished his claims against the owner
after issuance of the Administrator's order, and vacated the
premises, neither eliminated nor removed rent reductions granted
to the remaining complainants, and did not relieve the owner of
the obligation to restore adequate services. Moreover, the
settlement was not binding upon subsequent tenants to that
apartment, insofar as the rent reduction granted for the above
noted service reduction is concerned. Other claims resolved in
said settlement are not pertinent to these proceedings.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, Chapter 403 of the Laws of 1984, and
Chapter 102 of the Laws of 1984, it is
ORDERED, that the owner's petition be and the same hereby is,
denied, and that the Administrator's order be, and the same hereby
is, affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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