EJ 230003-RO, et al.
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
APPEALS OF DOCKET NOS.:
EJ 230003-RO; EI 230127-RT;
SOLICO, INC., Owner EI 210212-RT; EJ 210011-RT
and HYMAN LEVINE, GLORIA WEISS
and LENESTER POHL, Tenants, RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONERS DG 230109-B;
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ORDER AND OPINION DENYING OWNER'S AND ONE TENANT'S
PETITIONS FOR ADMINISTRATIVE REVIEW AND GRANTING
TWO TENANTS' PETITIONS FOR ADMINISTRATIVE REVIEW
The above-named petitioner-tenants, and owner filed timely
Petitions for Administrative Review against an order issued on
August 29, 1990 by a Rent Administrator concerning the housing
accommodations known as Various Apartments at 1610 Avenue P,
Brooklyn, New York wherein the Administrator determined that
there had been a decrease in services and, based thereon,
directed a rent reduction for 46 rent-controlled and 11 rent
stabilized tenants for three items listed on the complaint, but
determined to dismiss eight other items.
Subsequent thereto a petition was filed by the petitioner-owner,
in the Supreme Court pursuant to Article 78 of the Civil Practice
Law and Rules requesting that the "deemed denial" of its Adminis
trative appeal be annulled.
On April 24, 1991, an order was signed by Justice Shaw remitting
the proceeding to the Division in accordance with a stipulation
agreement between the attorneys for the Division a d petitioner-
owner, wherein it was agreed that the DHCR shall expeditiously
issue a determination on petitioner-owner's petition.
This order and opinion is issued in consideration of all issues
raised in the above owner's and tenants' administrative appeals,
in full consolidation of those proceedings.
The proceeding was commenced on July 10, 1989 when 28 tenants
joined in the filing of a complaint alleging a reduction of
building-wide services consisting of the following 13 items:
1. Security - vestibule door frequently inoperative;.
EJ 230003-RO, et al.
2. Intercom - many units not functional;
3. Sidewalk - holes, very unsafe;
4. Peepholes - unsafe; antiquated;
5. Water - flashing from hot to cold;
6. Incinerator rooms - sinks inoperative;
7. Lighting, inadequate in lobby, East 17th Street
entrance, and 6th floor stairwell;
8. Hole in lobby floor;
9. Basement door - bolted;
10. Basement ramp - uneven and broken up;
11. Elevator mirror - broken;
12. Apartment repairs;
13. East 17th Street door - slams.
The owner's answer stated that the building's managing agent was
notified of the problems pertaining to items Nos. 5, 6, 7, 8, 9,
10 and 13 and that the owner would follow this up to make certain
the work was done. As for items Nos. 4 and 12 the owner denied
knowledge of any specific requests but would attend to them upon
receipt. The owner denied responsibility for items No. 2 and 3,
stating that the co-operative board dealt with repairs of common
areas. Finally, the owner stated that it had first signed a con
tract for a new entrance door, which would be installed shortly.
An answer was also filed by the managing agent for the building
who stated that it was aware of the tenants' complaints and was
in the process of getting proposals to cure them.
In an Order issued on August 29, 1990 under Docket No. DG 230109
B, the District Rent Administrator determined, as based upon a
physical inspection by a DHCR staff member on March 20, 1990 that
a reduction of building-wide services had occurred, and reduced
the rent of the rent stabilized tenants to the level in effect
prior to the most recent guideline adjustment effective August,
1989; and that, as based upon the same findings of reduced ser-
vices, reduced the maximum legal rent of the rent-controlled
tenants according to the following schedule:
Incinerator sinks inoperative throughout . . . $ 3.00
Numerous holes in lobby floor . . . . . . . . $ 5.00
Basement ramp is broken and has cracks . . . . $ 6.00
The Order also stated that the following services were found to
be maintained:
Entrance and vestibule doors operative.
Intercom is operative.
Holes and cracks on sidewalk was repaired.
Incinerator chute was operative and no
accumulation garbage.
Adequate lighting on 6th floor and East 17th
Street entrance.
East 17th Street entrance door is operative.
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No broken mirrors in elevators.
The order dismissed the issue of the basement doors being locked
because the complaint failed to indicate the tenant's need to
have doors unlocked.
In the owner's petition, dated October 1, 1990, as supplemented
in a separate submission on January 22, 1991, the owner contends
that the Administrator's order was arbitrary and capricious in
general and that the determination to reduce the rent solely
because of "three minor items," which constitute no more than a
de minimis loss of services, is erroneous and must be revoked.
In the case of the inoperable "incinerator room sinks," the owner
contends that the sinks were only intended for building employees
to have access to water to clean the public areas, a function
that has totally been fulfilled by a working sink in the base-
ment. Since all the tenants have sinks in good working order in
the apartments and do not claim to have ever used the sinks in
the garbage closets, it cannot be said that they have been
deprived of anything they used to have.
Although the owner acknowledges that it holds the unsold shares
of the subject-apartments, it claims that it neither owns nor
manages the building.
The owner also claims that the holes in the lobby floor and the
cracks in the basement ramp are "isolated conditions" which
"normally occur in the course of maintenance of a large building"
and do not constitute decreased services. Furthermore, since the
complaint only mentioned one "hole" in the lobby - which was
corrected - the inspector's finding that there were others can
only mean this was a "new condition" which occurred after the
complaint was filed. The later holes, which the owner explains
are only "cosmetic" and "do not constitute a hazard," were caused
by the removal of glass partitions to make a new lobby vestibule
after the complaint was filed, and it is thus improper to use
them as a cause for a rent reduction when they had never been
referred to in the tenants' complaint. Similarly, the owner
contends that the ramp defects are also only "cosmetic," pose no
danger to the staff when removing the garbage and, at any rate,
are not in a public area. It has since been repaired.
Finally, the owner contends that the inspector's finding of
three "minor defective conditions" is similar to the Matter of
Melohn Properties (Docket No. ARL-0752-L), wherein the Commis-
sioner held that the five items cited in the order were "isolated
occurrences" that required only minor repair work, and did not
justify a rent reduction.
One tenant answered the petition, stating that, as a disabled
tenant, she used to have access to the basement with her door key
and used the basement elevator when she returned from shopping,
but that the superintendent began locking the door with a latch
after his tools were stolen. As a result, the tenants have to
drag their shopping carts up eight steps.
EJ 230003-RO, et al.
The petitions of tenants Gloria Weiss (Apt. 6-C) and Hyman Levin
(Apt. 6-L), both seek modification of the order to include their
names as they both signed the complaint but were omitted from the
list of tenants whose rents are reduced by the Order. Enclosed
with both petitions were copies of the complaint, which verified
their signatures. The owner filed no answer to either petition.
The petition filed by Lenester Pohl purports to be on behalf of
all effected tenants but contains no evidence of writt n author-
ization to act in such representative capacity as required by
Section 2529.1 of the Rent Stabilization Code. That petition
challenges the order's findings that the lighting at the East
17th Street entrance and in the center lobby were adequate, and
that there were no holes in the front walkway. It also notes
that the order never addresses the issue of the "flashing" hot
and cold water. Finally, the petition explains that the real
issue of the basement door is that the lock cannot be operated by
the disabled tenants.
The owner's answer to this petition contends that the petitioner
is not an authorized representative and that none of the five
items that were listed merits a rent reduction. It sets forth
the amount of illumination required under the Housing Maintenance
Code and contends that the building has always met this standard
in all public areas. The owner also states that all holes in the
front walkway had been repaired prior to the issuance of the
order, as was confirmed by the inspection. With respect to the
"flashing" hot and cold water temperature, the owner denies that
it is a decrease of service, since the tenants never allege any
problem with the plumbing system, which remains in good working
condition. It explains that momentary changes in the temperature
are common in older buildings, especially if a toilet is flushed
on the same cold water line. Finally, with respect to the locked
basement door, the owner notes that the complaint failed to
properly notify the owner of the nature of the problem. If the
type of lock presents a special problem for the disabled tenant,
as the petition claims, this was never stated on the complaint
and thus the owner was never able to address it.
The Commissioner is of the opinion that the owner's petition
should be denied, and that the petition of Lenester Pohl should
also be denied. Insofar as the two individual petitions by the
tenants Gloria Weiss and Hyman Levine only request the addition
of their names to the order - which had erroneously omitted them
- they shall both be granted in their entirety, effective as of
the date of the Administrator's order. Since they are both rent
stabilized tenants, their Legal Regulated Rent is reduced by the
percentage of the most recent guidelines adjustment for their
respective leases which commenced before the effective date of
this rent reduction.
The owner's attempt to repeat the processing of the complaint on
appeal by making arguments it failed to assert into the record
below must be rejected. In its answer of September 15, 1989 the
owner clearly acknowledged its responsibility for all three of
EJ 230003-RO, et al.
the items that were cited in the reduction order and even
promised to notify the managing agent as well as to "follow up to
make certain the work is done." The managing agent also
acknowledged that proposals were being sought to correct the
conditions complained of. There is nothing equivocal in such
language, nor is there any other communicati n to the Adminis-
trator which raises even one of the objections mentioned in the
petition. Therefore, the claims that the use of the "garbage
closet" sink was never a service to the tenants is precluded from
further investigation. Similarly inadmissible is any claim of
the de minimis effects of the service reductions. It is noted
that the DHCR has no discretion to consider the extent of
service diminutions that are verified on inspection (see Tenants
of Hyde Park Gardens v. D.H.C.R., 140 ADZ 357, 527 N.Y.S. 2d 841
(2d Dept. 1988), aff'd. 73, N.Y. 2d 998, 541 N.Y.S. 2d 345
[1989]). Just as persuasive, however, is that the complaint -
except in one instance - is quite clear as to the nature of the
problems caused by each item, thus permitting the inspector to
document his findings clearly. In the final analysis, the
specificity of the complaint and thoroughness of the inspection
as to the verified defects clearly sustains a rational basis for
the Administrator's determination.
With respect to the claim that the holes - plural - are different
from the - singular - "hole" mentioned in the complaint, the
petition gives no convincing reason to discount the findings of
the inspection report. Moreover, the claim that the owner did
not receive proper notice of the defect is contradicted by t e -
unproven - claim that the hole had been repaired.
Finally, the owner's contention that, as a mere share holder, it
is not responsible for repairs to the building is without merit.
The Commissioner has held the owner fully responsible for its
obligations under the Rent Stabilization Code notwithstanding any
difficulties in obtaining the approval of the corporation
(Accord: ARL 1514-L). In the present case, the owner does not
even allege such difficulties, and its particular share of
equity in the building has no bearing on its status as legal
owner under the Code.
The petition of the tenant-Pohl, although concerned with items
in the complaint, for which the rent was not reduced, is also
insufficient to upset the Administrator's determination. It
alleges that three of the items found to be adequate on inspec-
tion - lighting in the lobby, lighting at the East 17th Street
entrance and the alleged holes in the front walkway - were
defective notwithstanding the inspection report, but gives no
reasons why. It must be held as axiomatic, however, that mere
disagreement with the findings of a qualified inspector in such
matters, without specifying an error of law or fact, provides no
basis for challenging a holding by the Division. As for the
basement lock being inoperable by disabled tenants, the owner is
correct that this was not specified in the complaint. In fact,
as mentioned earlier, it is the one item in the complaint that
did not properly notify the owner of the nature of the problem.
A rent reduction for it would also be unwarranted because the
tenants do not object to the use of a lock or bolt per se, as the
EJ 230003-RO, et al.
complaint seemed to indicate, but only to the type of lock used.
With respect to the issue of sudden fluctuations in water
temperature, the owner is directed to investigate this allege
condition and determine the extent and cause of the problem.
The tenants are advised to file another complaint as relates to
this and/or the immediately preceding issue should they remain
uncorrected 30 days after the issuance of this order and opinion.
This order and opinion is issued without prejudice to the owner's
right to apply for a restoration of rent based on restoration of
services, if warranted.
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is,
ORDERED, that the owner's petition be, and the same hereby is,
denied and that the petition of the tenant-Pohl be, and the same
hereby is, denied; that the tenants' petitions, Docket Nos. EI
210212-RT and EJ 210011-RT, be, and the same hereby are, granted
in accordance with this order and opinion, and that the Rent
Administrator's order be, and the same hereby is, upheld.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
EJ 230003-RO, et al.
EJ 230003-RO, et al.
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