EH-830129-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.:
EH-830129-RO
J. DE BENEDICTIS & SONS
BUILDING CORPORATION, DRO DOCKET NO.:
MED 910052-B
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
AND REMANDING PROCEEDING TO RENT ADMINISTRATOR
On August 14, 1990 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator, 55 Church Street, White Plains, New York issued
July 12, 1990. The order concerned housing accommodations
located at 56 Sheridan Avenue, Mount Vernon, New York. The
Administrator ordered a building-wide rent reduction for a three
month period for failure to maintain services.
The Commissioner has reviewed the record and has carefully
considered that portion of the record relevant to the issues
raised by this administrative appeal.
This proceeding was commenced on April 17, 1990 when thirty-five
tenants joined in filing a complaint of decreased services in
which they alleged that there was inadequate hot water during the
month of March 1990, there was no heat for the last five days of
March to the present, the exterior electrical lights were
disconnected for each side of the building, there are broken and
unsafe steps on ground landing and front entrance stairs, there
is a broken back entrance door and a malfunctioning elevator.
The owner answered the complaint and stated that the heat and hot
water services were interrupted for periods of the day during
March 1990 while necessary repairs were being made, that the
elevator is serviced pursuant to a maintenance contract, that the
steps would be repaired when the weather permitted, that the
lights were working as confirmed by the Mt. Vernon Building Dept.
and that the back entrance door is always locked except when
repairs are being made to the building. One tenant filed a
reply and stated that there was no heat and hot water for the
period March 5-31, April 8-21, and May 2-4, 8-22, 28 and 29,
1990. The tenant requested a copy of the Mt. Vernon Building
Dept. inspector's report to confirm that the exterior lights were
inspected as well as a copy of the elevator maintenance contract.
The tenant questioned why the owner had to wait for better
weather to repair the steps when the steps are inside and
requested a stronger and more secure back door. Finally, the
tenant requested a rent reduction "for the periods that we did
not have and do not have the services that we are paying for."
The Administrator determined that the landlord had failed to
maintain required services and ordered a building-wide rent
reduction for the period from May 1, 1990 through July 31, 1990.
The rents were to revert to the then current amounts on August 1,
1990.
In its petition, the owner argues that the rent reduction order
should be revoked because it is arbitrary, capricious and not
based on fact. The owner asserts that there was no inspection or
hearing, no reply by the tenants was served on the owner, and
there was no communication with the owner after the answer was
filed. The owner states that the boiler developed problems in
March 1990 which the owner had repaired in a manner designed to
cause the least inconvenience to the tenants. This resulted in
no heat and hot water from 8:30 a.m. to 4:30 p.m. on March 30 and
31, and April 2, 3, and 4, 1990. As for the other conditions,
the owner asserts that the exterior lights were never discon-
nected, the entrance steps were not found to be hazardous by the
Department of Buildings, in a report dated February 18, 1987, the
back entrance door is and was locked except when repairs were
being made to the boiler, and the elevator does sometimes break
down but is promptly repaired pursuant to a service contract.
One tenant responded to the petition and urged that the
Administrator's order be affirmed. She stated that the boiler
had broken down in 1988 and 1989 during the winter and early
fall, that she had fallen from the entrance step, that the
elevator breaks down and the elevator alarm is not operating.
She expressed no opinion regarding the back door and exterior
lights. Twenty seven tenants filed a joint response stating that
they were without heat and hot water for the periods stated in
the complaint, that the owner was using outdated Building
Department reports in stating that the lights were working and
the steps were repaired, and that the back entrance door was
still unsafe as was the elevator.
After a careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be
granted and the proceeding remanded to the Administrator.
The Commissioner has reviewed the record then existing before the
Administrator. Based on the conflicting statements of the
parties, there was no independent corroboration of the claimed
services deficiencies.
Section 2503.4 of the Tenant Protection Regulations states:
"A tenant may apply to the Division for a re-
duction of the legal regulated rent to the
level in effect prior to the most recent
adjustment under Section 2502.5(c)(1) and
(2), and the Division may so reduce the rent
where it is found that the owner has failed
to maintain the services."
The owner is correct in stating that there was insufficient proof
of the period of the alleged reduction to warrant the Adminis-
trator's conclusion that the period involved was May 1, - June
31, 1990. Indeed, one tenant stated that she was without heat
for periods in March and April and well as May. The Administra-
tor's failure to investigate before issuing this order was error.
Based on this error, the Commissioner hereby revokes that
Administrator's order and remands the proceeding to the
Administrator for the purpose of conducting an on-site physical
inspection to determine if the conditions complained of by the
tenants continue to exist.
THEREFORE, pursuant to the Emergency Protection Act and Tenant
Protection Regulations, it is
ORDERED, that this petition be, and the same hereby is granted,
and that the Rent Administrator's order be, and the same hereby
is revoked, and the matter be and the same hereby is remanded to
the Administrator for further processing in accordance with this
order and opinion.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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