David A, Paterson Governor

Deborah Vadmerongen Commissioner

New York State Division of Housing and Community Renewal 25 Beaver Street

New York, NY 10004

Cassie Carter 188 East 93rd

New York, New York 1 0 128

July 29,2008

Re: MED, LLC v, DHCR N.Y. Co. Supreme Court Index No. 108059/08 Administrative Review Docket no. VK410033RO

Dear Ms. Carter:

As per your recent telephone request for a copy of the Article '78 petition filed by your landlord in the Supreme Court, please find same enclosed herewith.

Sincerely,

Martin B. Schneider Assismt Counsel (212) 480-6783

Web Site: www.dhcr,state.ny.us Email address: dhcrinfo@dhcr.state.ny.us

SUPREME COURT OF THE STATE OF NEW YOKK COUNTY OF NEW YORK

In the Matter of the Application of - - MED, LLC, ,

Petitioner, For a Judgment Under Article 78 of the Civil Practice Law and Rules,

-against- DIVISION OF HOUSING AND COMMUNITY RENEWAL,

Respondent.

NOTICE OF PETITION

KUCKER & BRUH, LLP Attorneys for Respondent

7 4 7 THIRD AVENUE

NEW YORK, NEW YORK 1001 7

(2 12) 869-5030

James R. Marino Please refer all communications to: Esq. - --

Pursuant to 22 NYCRR 130-1.1-a, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belief and reasonable inquiry, (1) the contentions contained in the annexed document are not frivolous and that (2) i f the annexed document is an initiating pleading, 0 the matter was not obtained through illegal conduct, or that i f it was, the attorney or other persons responsible for the illegal conduct are

Dated:. ......... Jme..9,..2Q.Q8i. ........ ......................................

.......................................................................................

Service of a copy of the within is hereby admitted.

Dated: ..................................................................................................................................................................... Attor¥ney(s f o r

PLEASE TAKE NOTICE

that the within is a (cert@ed) true copy o f a NOTICE OF entered in the office of the clerk of the within-named Court on 2 0

ENTRY 2 .z m

thaf an Order of which the within is a t m e copy will be pmcsen&dfor set t lment to the NOTICE OF HOR. , one of t h e m e s of the within-named Court,

SETTLEMENT at on 20 . at M.

Dated:

KUCKER & BRUH, LLP Attorneys for

To:

Attorn.ey(s) for

7 4 7 THIRD AVENUE

NEW YOKK, NEW YORK 10017

STATE OF NEW YORK. COUNTY OF ss: w" Â

I, the uadersigned, am an attorney admitted to practice in the courts of Newyork, and certify that the annexed

g Attorney's has been compared by me with the original and found to be a true and complete copy thereof.

$ CerttR~aiion

l? say that: I am the attorney of record, or of counsel with the attomey(s) of record, for

a . I have read the annexed 5- Attorney's know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged on informatio

Verification and belief, and as to those matters I believe them to be true. My belief. as to those matters therein not stated upo S "V

Affirmation knowledge, is based upon the following.

The reason I make this instead of is

I affirm that the foregoing statements are true under penalties of perjury Dated: ...........................................................................................................

(Prircc signer's name below signarm

STATE OF NEW YORK, COUNTY OF ss: being sworn says: I am

a in the action herein; I have read the annexed know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged o

ii verflcrnion information and belief. and as to those matters I believe them to be true. - -

the of ' a a corporation, one of the parties to the action; I have read the annexed 6 corporate know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged o

Verification information and belief, and as to those matters I believe them to be true.

My belief, as to those matters therein not stated upon knowledge, is based upon the following:

Sworn to before me on 2 0 .......................................................................................................... {Print signer's name below signaiw

STATE OF NEW YORK, COUNTY OF ss: being- sworn says: I am not a party to the action, am over 18 years c

age and reside at On ,20 , I served a true copy of the annexed

in the following manner:

0 by mailing the same in a sealed envelope, with postage prepaid thereon. in a post-office or official depository of the U.S. Postal Servict

sarvica addressed to the address of the addressee(s) indicated below, which has been designated for service by the addressee(s) or, if no such addres byMaii has been designated, is the last-known address of the addresseets):

by delivering the same personally to the persons at the address indicated below: Personal Service

8 a3

by transmitting the same to the attorney by facsimile transmission to the facsimile telephone number designated by the attorney for ths

2 0 purpose. In doing so, 1 received a signal from the equipment of the attorney served indicating that the transmission was receive( a - D. Service by

and mailed a copy of same to that attorney, in a sealed envelope, with postage prepaid thereon, in a post office or official depository of th 2 Facsimile U.S. Postal Service, addressed to the address of the addressee(s) as indicated below, which has been designated for service by th x IS addressee(s) or, i f no such address has been designated, is the last-known address of the addressee(s): i5

by transmitting the same to the attorney by electronic means upon the party's written consent. In doing so, I indicated in the subject matte Service by Electronic heading that the matter being transmitted electronically is related to a court proceeding:

Means

by depositing the same'kith an overnight delivery service in a wrapper properly addressed, the address having been designated by ih Overnight addressee(s) for that purpose'w if none is designated, to the last-known address of addressee(s). Said delivery was made prior to the late! Delivery time designated by the overnight delivery service for overnight delivery. The address and delivery service are indicated below:

-' -\

\.

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--^..\ Sworn to before me on ,20

l-x,,

-\ \ .....................................................................................................................

\ (Print signer's name below ~ignatur

-\

Petitioner,

For a Judgment Under Article 78 of the Civil Practice Law and Rules,

NOTICE OF PETITION

DIVISION OF HOUSING AND COMMUNITY RENEWAL,

PLEASE TAKE NOTICE, that upon the annexed Petition of MED, LLC, duly verified

- ̂the 7 day of June, 2008, and upon all of thefpleadings heretofore had herein, the

t

undersigned will move this Court at the Submission Part, Room 130 there

Courthouse located at 60 Centre Street, New York, New York , on n ( ~ u ~ u s t , 2008 at$^ o'clock in the forenoon of that day or as soon t h e r e a f t e r a ~ c d \

7

can be heard for a judgment under Article 78 of the Civil Practice Law and Rules, granting

Petitioner a judgment reversing, annulling and setting aside an "Order and Opinion

Denying Petition for Administrative Review" (Docket No. VK-410033-RO) filed by the

Petitioner-landlord of the subject premises on the basis that said "Order" is -=# arbitrary, g 2- e-3 > * % f *

capricious and in violation of law and not in accordance with the fa

presented, and for such other and further relief as to the Court may se

under the circumstances. . - OJ '-3.-3 03 2.' ' /- r c-?

PLEASE TAKE FURTHER NOTICE, that all answering affidavits, must be served

upon Petitioner's counsel at least seven (7) days prior to the return date noted above.

Dated:New York, New York June 9.2008

Yours, etc.

KUCKER & BRUH, LLP Attorneys for Petitioner 747 Third Avenue New York, NY 1001 7 (21 2) 869-5030

TO: GARY CONNOR DHCR-Litigation Bureau 25 Beaver Street New York, New York 10004 (21 2) 480-6700

NEW YORK STATE DEPARTMENT OF LAW Office of the Attorney General 120 Broadway New York, NY 10071

Petitioner,

For a Judgment Under Article 78 of the Civil Practice Law and Rules

VERIFIED PETITION

DIVISION OF HOUSING AND COMMUNITY RENEWAL,

Petitioner, MED, LLC, by its attorneys KUCKER & BRUH, LLP, respectfully allege:

1. The Petitioner is the owner and landlord of the premises designated as 188

East 93rd Street, New York, New York.

2. Respondent, New York Division of Housing and Community Renewal, by

virtue of the Omnibus Housing Act of 1983 (Ch. 403. L. 1983) became the administrative

agency responsible for the administration of the Rent Stabilization Law (NYC Admin. Code

Sect. 26-501, et seq.) and the Rent and Rehabilitation Law (NYC Admin. Code Sect. 26-40

. et. seq.) effective April 1, .I 984.

3. The proceeding below was a complaint of a decrease in services filed by

several tenants at the subject premises.

4. The subject order found a decrease in services, and imposed a rent

reduction. A copy of the Respondent's Order is annexed as Exhibit "A". The finding is

incorrect. The Respondent found that a courtyard had been eliminated from the premises,

but failed to take into account that the space that has been referred to as a "courtyard"

lacked the amenities that would render it a "courtyard" that must continue to be provided.

The Respondent's own precedent, and its own Rent Stabilization Code, require the

presence of said amenities before it can be found that the area is a service that cannot be

discontinued without prior permission from the agency.

5. Thereafter, the Petitioner availed itself of its administrative remedy, by filing a

Petition for Administrative Review ("PAR") against the Order Reducing Rent. On April 30,

2008, the Respondent's Commissioner issued the subject "Order and Opinion Denying

Petition for Administrative Review" under docket number VK-410033-RO. A copy of said

"order and opinion" is annexed as Exhibit "B".

6. The subject "Order and Opinion" is arbitrary and capricious, and is not

rationally related to the facts of the matter or applicable law. The order should be revoked

by this Court, and the tenant's complaint alleging a decrease in services should be

dismissed.

7. The subject order found a decrease in services, and reduced the rent for the

complair~ing tenants, based upon the results of an inspection which found that the

"courtyard" has been "totally eliminated". However, the order must be revoked, as the

single item forming the basis of the rent reduction cannot, as a matter of law, form the

basis for a rent reduction in this instance.

8. The tenants' contention concerning the "courtyard" and related landscaping

was incorrect, and does not rise to the level of a decrease in services.

9. The "courtyard" was never a "courtyard" at all. It was not a tenant gathering

place; it was only a means of ingress and egress from the street to the building. There

were never any amenities in it, including the "garden" referred to by the tenants in the

complaint. The trees and bushes referred to in the complaint are not a service; they are

merely landscaping that any owner has the ability to change at its discretion. See item

number "1 1" set forth in the de minimus schedule made part of section 2523.4 of the Rent

Stabilization Code, a copy of which is annexed as Exhibit "C". The Court is respectfully

referred to subparagraph (e) of that Code section, which sets forth that there are certain

modifications that a landlord is permitted to make to a premises that are de minimus in

nature, and which do not rise to the level of a rent reduction because they have only a

minimal impact upon the tenants. In this case, the area in question is only one that the

tenants would traverse to gain entry to, or leave,; the building. The owner's modifications

had no impact upon the tenants, as they still use that same are to do so.

10. The tenants attempted to obfuscate the fact that the area in question was

merely a passageway from the street to the rear entrance door when they incorrectly, and

casually, claimed in the complaint that a "required second means of egress has been

eliminated." That is not so, as the tenants of the building can, and do, access the premises

from the very area that is referred to in the complaint, and the inspection conducted during

the proceeding below confirmed this fact. Again, the area in question was and is only a

way to get into and out of the building (in addition to being the area where the garbage

cans for the premises were kept [those cans are now kept in the basement, as more fully

explained below]). There were no formal facilities that were a part of the alleged

'courtyard". There were no benches or sitting areas, or any of the other indicia of a

gathering place. It was and is simply an area through which the tenants walked through to

get to the rear door. The tenants still do that. and therefore have not experienced a

decrease in services.

11. The only difference between the method by which the tenants formerly

gained access and the method by which the tenants now gain access is that, after entering

the building lobby off of 9 3 Street, they turn left and proceed down a newly-constructed,

short interior corridor, instead of proceeding from the lobby into an open-air passage, and

then back into the building to the rear door. This is a de minimus change that does not rise

to the level of a decrease in services. The service of entering and exiting the building

through a rear door remains the same.

I

12. The tenants have submitted no evidence that the "courtyard" was used for

anything other than a way to enter and exit the building, and the subject order cites no such

evidence. There has never been a policy at the building that the area could be used to

gather or sit, and the tenants have not submitted any evidence that there was such a

policy. Access through the area has not been denied by the owner. There is no proof

offered that the area is blocked off as a way to enter or leave the building.

13. In fact, the area could hardly support a function of a gathering place for

tenants, as it was formerly the site of the garbage pails for the building. The tenant's own

photos submitted during the proceeding below show the presence of the garbage cans,

and they also show the complete absence of any sitting or other facilities. The pails have

since been removed to another location in the building (the basement), which the owner

was within its right to do (See Reinisch: Adm. Rev. Dckt. No. BH-410301-RT; Wheat:

Adm. Rev. Dckt. No. SG-410107-RT; 35-35 2gth Street: Adm. Rev. Dckt. No. OJ-130039-

RT, copies of which are annexed as Exhibits "D", "El1, and "F1', respectively), and the owner

was free to use the space as it wished; there is no requirement that it be used by the

residential tenants at the premises for any purpose other than ingress and egress, which

the tenants continue to do.

14. Reference to another sub-section of Section 2523.4 of the Code, which also

deals with an area of a building that tenants sometimes claim they can freely use to gather

sets forth that an owner's discontinuance of roof access will be considered a de minimus

reduction where there are no formal facilities in that area, unless a lease clause provides

for such a service. A copy of that section of thecode (see item 19 "Roof) is annexed as

Exhibit "G". The same logic applies to allegations about the alleged use of a "courtyard".

There is no contention of the existence of lease clause that provides for a "courtyard", and

there were no formal facilities that would have made it a tenant gathering place. In fact,

the evidence supports a finding that this area was (and still is) only an area that the tenants

walk through to enter the premises. The fact that they still do so is proof that there is no

decrease in services, which required a dismissal of the complaint.

15. During the processing of the matter, the tenants recognized that there was a

severe lack of evidence that the open air space in question was to be used for anything

other than entering or leaving the premises. In their supplemental submission during the

proceeding below, the tenants attempted to buttress the paucity of evidence in the record

concerning formal facilities by claiming that sometimes they would sit on a brick wall that

ran along a portion of the walkway in the rear of the building. However, a brick wall that

was designed solely to hold in dirt abutting the building is not a formal sitting facility, even if

a tenant decided to sit on it(the presence of a railing on the wall would have, in any event,

prevented someone from actually sitting on the wall; more likely, a tenant could only lean

against the wall, not sit on it; see photos of area in question annexed hereto as Exhibit "H").

A tenant's unilateral action does not create a service. A service is something that is

provided by an owner, which was never the case herein (and the tenants did not allege that

the owner provided anything in the area to help them use the area to allegedly sit).

16. The owner had nothing to do with the tenants' apparent unauthorized use of

the area as something it was never designed for. The area is not a meeting room, nor is it

a sitting area. Again, the tenant's own evidence, in the form of photos, demonstrates the 1

complete absence of anything that would permit a finding that tenants were provided the

alleged service, and the absence of such evidence and the nature of the space in question

certainly did not constitute notice to the owner or anyone else that the space in question

could not be modified by the owner.

17. The fact remains, the area in question was nothing more than a way to gain

entry to the premises. Theability of the tenants to do that still exists today, and there is no

evidence that anything else was provided as a service. There can be no decrease in

services if there is no evidence that something was previously provided that has now been

taken away. Nothing was ever given to the tenants in this regard, so nothing was taken

away either. There is not even an allegation, let alone evidence, that any owner gave the

tenants anything. The tenant's allegations consist solely of alleged unilateral use of a brick

retaining wall to sit on, which never was the intended purpose of the wall, and for which the

wall was never designed for in the first place. In this regard, the roof-use cases are directly

on point (See Miller: Adm. Rev. Dckt. No. TC-410072-RT, annexed as Exhibit 7'';

Record Co.: Adm. Rev. Dckt. No. QL-430063-RO, annexed as Exhibit "J", and Goldman v.

DHCR, 31 AD 3d 275,817 NYS 2d 498 (lst Dept., 2006), Iv to app denied, 7 NY3d 715,

826 NYS 2d 180 (2006). In those cases, which clearly involved the absence of formal

facilities, the tenants claimed that, notwithstanding the absence so such facilities, they sat

on the roof anyway, either directly on the roof surface, laying towels or blankets down, or

bringing their own chairs. In those cases, the DHCR held correctly that the tenants could

not simply create their own service. The absence of formal facilities was proof that the

owner never provided the service. Similarly, in this case, there is not even an allegation

that the owner provided anything. All we have isa tenant claim that they used the area, on

their own, without permission, and sat on things that were not designed or intended for

sitting, and that they sometimes brought their own chairs. Such unilateral action is not

enough in the case of roof use, and is not enough in this case either. The absence of

formal facilities like benches or tables is a clear indication that no owner of the premises

ever permitted or intended that the area be used for anything other than a means to enter

or leave the building.

18. In light of the above facts, which the Respondent never bothered to discuss in

the order under review herein, it was an error to impose a reduction in rent and to find that

a service had been decreased. The owner has the right to change make the modifications

to the area traversed by the tenants to enter or leave the building, so the subject order

must be revoked.

WHEREFORE, based upon the foregoing, Petitioner respectfully prays for an Order

and Judgment reversing, annulling and setting aside Respondent's "Order and Opinion

Denying Petition for Administrative Review" (Docket No.: VK-410033-RO), and

dismissing the tenant's complaint, and granting such other and further relief as to the

Court may seem just and proper under the circumstances.

Dated:New York, New York June 9,2008

Respectfully yours,

KUCKER & BRUH, LLP Attorneys for Petitioner

By: mes R. Marino, Esq. 7 Third Avenue

New York, NY 1001 7 (2 1 2) 869-5030

VERIFICATION

STATE OF NEW YORK ) )ss.:

COUNTY OF NEW YORK )

JAMES R. MARINO, being duly sworn, deposes and states tha it he is a member of

the firm of Kucker & Bruh, LLP, attorneys for Petitioner in the within proceeding, and has

read the foregoing Petition; and that the foregoing Petition is true to his own knowledge,

except as to those matters therein stated on information and belief, and as to those

matters he believes them to be true; that the grounds of his belief as to all matters not

stated upon his knowledge are correspondence and other writings furnished to him by

Petitioner; and that the reason why the verification is not made by Petitioner is that

Petitioner is not currently located in the county where its attorneys has their office.

Sworn to before me this f f i day of June, 2008

Exhibit A

State of New Yerk Gertz Plaza et Number Division of H o w and C ~ m m d t y Renewd 92-31 Union Hall Street VC 410018 3

Office of Rent Administration Jamaica. NY 11433 Issue Date Web Site: www.dhcrstate.ny.us (718) 739-6400 10/23/2007

Mailing Address of Owner: Mailing Address of Tenantb);

Med Llc C/O Sky Management Corp 226 E 54th Street, Suite 402 New York NY 10022

Various SEE THE ATTACHED APARTMENT/TENANT LISTING

Subject Housing Accommodation:

Apt No: Various 188 E 93rd St New York NY 10128

I. FACTS: The tenant(s) filed a complaint on 03/20/2007 based upon decreases in service(s). The owner was afforded an opportunity to respond by service of complaint on 04/26/2007.

11. FINDINGS: Based upon a complete review of the record, the DHCR finds:

SERVICES NOT MAINTAINED: REAR COURTYARD

ADDITIONAL COMMENTS:

An inspection was conducted at the subject premises on September 26, 2007.

With regard to the rear courtyard, physical inspection revealed the rear courtyard has been totally eliminated. The owner is directed to restore the rear courtyard space or file application to modify the service.

To: JAMES R. MARINO ESQ. KUCKER 6 BRUH LLP. 747 THIRD AVENUE NEW YORK NY 10017

State of New York * GertzHaza Docket Number Division of Housing and C k m m ~ t y Renewd 92-31 Union Hall Street VC 410018 B

Off ice of Rent Administration Jamaica, NY 11433 Issue- W e b Site: www.dha.state.ny.us (718) 739-6400 10/23/2007

111. DETERMINATION: Pursuant to the Rent Stabilization code sections 2520.6(r) and 2523.4, and Operational Bulletin 95-1, the legal regulated rent is reduced to the level in effect prior to the most recent guidelines increase for the tenants lease which commenced before the effective date of this order, except: if a Major Capital Improvement (MCI) increase has been granted for the subject premises, and the owner has already begun to collect the MCI increase, or if the owner has already begun to collect an Owner Individual (01) increase, the owner may continue to collect the MCI or 01 increase. However, no other rent increases may be collected after the effective date of this rent reduction order, 05/01/2007, until an order is issued restoring the rent. The owner is directed to refund to the tenant(s) all amounts collected in excess of the reduced rent, other than MCI or 01 increases, since the effective date of this reduction order. If the owner fails to make a refund within thirty (30) days of the issue date of this order, the tenant is authorized to deduct the amount from future rent (s) until the total amount has been refunded, unless the owner files a Petition for Administrative Review of this order. The owner is directed to restore the above services not maintained for all apartments affected by this order within thirty (30) days of the issue date.

IV.

V.

EFFECTIVE DATE: 05/01/2007 - which is the first o-f the month following the service of the complaint on owner.

PETITION FOR ADMINISTRATIVE REVIEW (PAR): If You believe this Order is based on an error in law and/or fact you may file a Petition for Administrative Review within thirty-five (35) days of issuance of this Order. See Notice of Right to Administrative Review.

LUKE T. O'BRIEN Rent Administrator Issued: 10/23/2007

~ttachment(s): NOTICE OF RIGHT TO ADMINISTRATIVE REVIEW NOTICE OF ADDITIONAL INFORMATION APARTMENT/TENANT LISTING

CC: CASSIE CARTER, TENANTS' REP. OHEBSHALOM FAMILY D/B/A/

LO-2970 (5/2006) Page 2 of 5

State'of New York Division of Housing and Community Renewal

Off ice of Rent Administration Gertz Plaza

92-3 1 Union Hall Street Jamaica, NS 11433

Web Site: www.dhcr.state.ny.us

Notice of Right to Administrative Review

This Notice explains your right to appeal, seeking review of orders issued by a Rent Administrator. If you believe that an order is based on an error of law and/or fact, as an aggrieved party you have the right to ask the Division of Housing and Commwty Renewal (DHCR) to review the order based on your claim of error. This request is called a Petition for Administrative Review, and is referred to as a PAR. If you wish to file a PAR, please read the information and instructions below and follow them carefully. Further details may be found in Operational Bulletin 84-1 governing PARs and in the instructions printed on the reverse side of the form used for filing a PAR.

Who may File a PAR:

An owner, tenant, or other party affected by an order, or an authorized representative of such person(s1, may file a PAR. Two or more affected owners or tenants may join in filing a PAR. The DHCR encourages joint filings by affected parties filing on common grounds.

How to File a PAR:

1. Use the correct form. PARs must be filed in duplicate using DHCR form RAR-2, in accordance with the instructions on the form. PARs filed on other forms or by letter will not be accepted.

2. You must attach a complete copy of the order which you are appealing to the original of your PAR.

Time Limit for Filinp a PAR:

The PAR must be hand-delivered or mailed to DHCR at Gertz Plaza, 92-31 Union Hall Street, Jamaica, New York 11433.

1. If the PAR is band delivered, it must be received no later than 35 days after the date the order was issued. The date issued usually appears in the upper right-hand comer of the order.

2. If the PAR is mailed, it must be postmarked no later than 35 days after the date the order was issued. If you use a private postage meter and the envelope does not have an official U.S. Postal Service Postmark, the PAR must be received by the DHCR office not later than 35 days after the order's issuance date, or you will be required to submit other adequate proof (such as an official Postal Service receipt or certificate of mailing) that the PAR was mailed within the 35-day limit

PARS filed after the time limit will be considered untimely and will be dismissed.

How to Obtain the PAR F o m

You may request the PAR form RAE-2 by coming to any DHCR Borough Rent Office listed below or to the Office of Rent Administration's main office at Gertz Plaza, 92-31 Union Hall Street, Jamaica, New York 11433. You may also request that the form mailed to you by calling (718) 739-6400. Please note that any delay resulting from mailed delivery of the form to you does not extend the time limit for filing the PAR.

DHCR Borough Rent Offices

Lower Manhattan 25 Beaver St. 5th Floor New York, NS 10004

Bronx 1 Fordham Plaza 2nd Floor Bronx, NY 10458

Upper Manhattan Brooklyn 163 West 125th St. 55 Hanson Place 5th Floor 7th Floor New York, NY 10027 Brooklyn, NY 1 1217

Queens Staten Island 92-3 1 Union Hall S t 60 Bay S t 4th Floor 7th Floor Jamaica, NY 11433 Staten Island, NY 10301

State of New York . GertzPhza Docket Number Division of Housing and &mun.itY Renewal 92-31 Union Hall Street VC 410018 B

Office of Rent Administration Jamaica, NY 11433 Issue Date Web Site: www.dhastak.ny.us (718) 73- 10/23/2007

I. r n D r n 0 N f i m o R M A n o N (1) If the owner fails to make a refund of a retroactive reduction within thirty (30) days of the issue date of the referenced order, the tenant is a u t h o m to deduct the amount from future rentb) until the total amount has been refunded unless the owner film a PAR. (2) A tenant with a valid -or Citizen Rent Increase Exemption (SCRIE3) Certificate should notify the KRIB program immediately upon receipt of this order. (3) For a rent controlled a m e n t where there is already an Order Reducw Maximum Collectible Rent in effa t for a service decrease specificdly contained herein, or for a rent sta- apartment where such an Order is already in effect for any type of decr services, no further rent reduction is authorized by this Order, unless the effective date of this Order predates the effective date of the reduction already in effecL (4) If a tenant receives a rent reduction from DHCR and also receives another abatement or a rent credit because of the same conditions, the tenant cannot get both benefits at the same time. Therefore

(i) If a rent-ntrolled tenant has received in court a &it, abament, or offset in rent because of a breach of the warranty of habitability, and the credit, abatement* or offset applies to rent payable for the months a h covered by the reduction granted herein, and the breach of the warranty of haMtamiQ relates to one or more of the same conditions as those found not maintained herein, then: that portion of the reduction ordered herein for such conditions for any month(s) to which both the reduction and the credit, abatement, or offset apply, is reduced by the amount of that portion of the credit, abatement, or offset that is received because of the conditions found not maintained herein. If the credit, abament, or offset is greater than the mount of the reduction ordered for the same item, the reduction shall not take effect for months in which the credit, abatement, or offset applies. (ii) If a rent-stabilized tenant has received in court a credit, abatement, or offset in rent btxause of a breach of the warranty of habitamty, and the credit, abatement, or offset applies to rent payable for the months a h covered by the reduction granted herein, and the breach of the warranty of habitability relates to one or more of the same conditions as those found not m a h w e d herein* the= the reduction ordered herein for any month($ to which both the reduction and the credit, abatement, or offset apply shall not be combined with the mount of lhe cre6?& a~akmenl, or o f f s l &I as la reduce the &flat's mfll la & level lower &m &e level in effect prior to the most r a n t guidelines increase, unlas the credit, abatement, or offset is pea* than the reduction ordered herein, h which cam the reduction dcm not apply for any such months

11. N O N a M P L M a It the omer tails la restore ~~~, the tenant m y ~qwt that wmpliance pmxdings be initiated, by filing an Affirmation of Non-Chmpliance (form M-22.1), after thirty (30) days from the issue date of the order. The form may be requested by calling (718) 739-6400,

111. PENALTIES If the owner fails to restorb the servids) as directed in the referenced order, then the DHCR may impose - pursuant to the Rent Stabilization Code sections 2520*6(r), 2523.4 & 2526.2 or Rent and Eviction Regulations section 2200.3, 2202.3, 220216 & 2206.3 - penalties & sm~tiom for each insmw of n o n - ~ ~ m p ~ c m as follow^

(1) For violating an Order of the DHCR, a civil penalty of $250.00 for the first such offense if the subject housing mmudation is Rent Stabilized ($100.00 if Rent Controlled) and $1W.O for each subsequent offence ($500.00 if Rent &ntrolled). If each service, directed to be restored in this order, is not restored in a timely manner, it m y constitute a separate violation. (2) For ho-y violating any provision of the Rent Stabf ia~on law or code (if appliable a civil penalty of up to $250.00 for each violation. Each reduction in service may constitute further violation separate and apart from the violation d & M in paragraph (1).

State of New York Gertz Plaza Docket Number Division of Homing and Commity Renewal 92-31 Union Hall Street VC 410018 B

Office of Rent Administration Jamaica, NY 11433 Issue Date W e b Site: www.dha.state.ny.us (718) 739-6400 10/23/2007

Subject Housing Accommodation: 188 E 93R.D ST NEW YORK NY 10128

PAGE: 1

RENT STABILIZED APTS 1B GILDA GIORDANO 11 RANDY LOCKARD IN CASSIE CARTER 10 PAULINE WINANS 2A MONIQUE RIVERA 2B LUDOVICA VILLAS-HAUSER/G. MURP 2N VINCENT APPOW 3J TERRY DOKTOR/LOUISE DOKTOR 40 JENNIFER MISNER

RfÈ-3t4 iV1.-1 Pace 5 of 5

Exhibit B

STATE OF NEW YORK DIVISION OF HOUSING AND COMMUNITY RENEWAL

OFFICE OF RENT ADMINISTRATION GERTZ PLAZA

92-31 UNION HALL STREET JAMAICA, NY 11433

MED, LLC RENT ADMINISTRATOR'S DOCKET NO.: VC410018B

ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

On November 2,2007, the above-named petitioner-owner filed a Petition for Administrative Review (PAR) of an order issued on October 23,2007, by the Rent Administrator, concerning the housing accommodations known as 188 East 93rd Street, Various Apartments, New York, New York, wherein the Administrator granted rent reductions for the complaining tenants on the basis that the owner failed to seek permission from the agency before eliminating the courtyard. A Division inspection confirmed that rear-courty ard service was not being maintained.

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 petition.

In the PAR, the owner avers that the area in question is not a courtyard but was nothing more than an exitway or an alley. The petitioner also claims that a prior determination made in Docket No. SK410054RT (involving the same parties and premises) supports this claim and that the same determination also held that the courtyard elimination did not rise to a level of a decrease in services. The tenants filed an answer to the PAR on October 2,2007, which opposed the owner's claims. More specifically, the tenants claim that the area in question was a courtyard and an integral part of the building which served as a refuge, oasis and meeting place for all residents. They also claim that the owner's interpretation of the determination made in Docket No. SK4 1 OO54RT is erroneous and that this decision merely addressed landscaping or grounds-maintenance issues.

After a careful consideration of the entire evidence of record, the Commissioner is of the opinion that the petition should be denied.

Sections 2522.4 (d) and (e) of the Rent Stabilization Code require the owner to maintain required services included in the maximum rent of rent stabilized apartments unless and until the owner files an application with the DHCR to decrease or modify said required services and an order permitting such decrease or modification has been issued.

The rear courtyard was eliminated and the owner did not have permission to decrease that service. (A Division inspection conducted on September 26, 2007, confirmed this.) Therefore, the Rent Administrator properly determined that this service had been reduced and that rent reductions were warranted for all complaining tenants.

That the owner may have had commercial or other reasons to replace the existing courtyard is not relevant to a review of the Rent Administrator's order.

The Commissioner notes that the determination made in Docket No. SK410054RT belies the owner's argument posited in the appeal. This determination supports the tenants' claim that this proceeding primarily involved landscaping and grounds-maintenance issues and that it made no determination as to the area's status or classification and that it did not conclude that the alteration or elimination of the courtyard was a de-minimis event.

Accordingly, no error was committed below.

THEREFORE, in accordance with the provisions of the Rent Stabilization Law and Code and Operational Bulletin 84-1 it is

ORDERED, that this petition be, and the same hereby is, denied, and that the Rent Administrator's order be, and the same hereby is, affmed.

LESLIE TORRES Deputy Commissioner

State of New York ,

Division of Housing and Community Renewal Office of Rent Administration Gertz Plaza, 92-31 Union Hall Street Jamaica, NY 11433 Web Site: www.dhcr.state.ny.us

Right to Court Appeal

In order to appeal this Order to the New York Supreme Court, within sixty (60) days of the date this Order is issued, you must serve papers to commence a proceeding under Article 78 of the Civil Practice Law and Rules. No additional time can or will be given.

In preparing your papers, please cite the Administrative Review Docket Number which appears on the first page of the attached Order.

Court appeals from the Commissioner's orders should be served at Counsel's Office, Room 707, 25 Beaver Street, New York, New York 10004. In addition, the Attorney General must be served at 120 Broadway, 24th Floor, New York, New York 10271.

#

Since Article 78 proceedings take place in the Supreme Court, may require the professional help of an attorney.

Exhibit C

NEW Y O W CITY mNT S T m l L m T I o N

correct the service or equipment deficiency, &e owner should set forth such facts in the 9. GARAGE-, response. Upon receipt thereof, in order to facilitate the resolution of the complaint, the DHCR may direct an inspector to accompany the owner or the owner's agent to the housing actxmmodation to determine whether such access is king provided, In order 10. GRfwFim-

for DHCR to coordinate the inspection, the owner should indicate that amess has k n the owner subm

denied in the response submitted to the DHCR and should include q i e s of two letters to the tenant attempting to arrange for access. Each of the letters must have been mailed 11. LANDSCAI at least eight days prior to the date proposed for access, and must have been mailed by certified mail, return receipt requesttxl. Ekceptions to such requirements for inspeaion may be permitted under emergency conditions, where special circumstances exist, or pursuant to court order. The service complaint, or objection to a rent restoration application, by a tenant who fails to provide access at the time arranged by the DHCR

13. LIGHTING '

14. LOBBY OR

The following schedule sets forth conditions that will generally not mmtitute a

include all conditions that may be considered de minimis, and there may be c i m m where a condition, although included on the schedule, will nevertheless be foun constitute a decrease in a required service.

B ~ R ~ G W I D E COPIDTITONS

non-enclosed p n b k areas.

2. BUILDING FiNTRANCX DOOR-Removal of canopy over unlocked d m

3. CARPFTING4hange in color or quality under certain C ~ I X W I I S ~ W ; isolated on otherwise clean carpets; h y a i m a s which do not create a tripping hazard.

4. aOm-Removal of, whether or not dryem are provided.

5. CZACKS-Sidewdk cracks which do not create a tripping hazar4 hairline

garden); removal of some or all for aesthetic masons.

7. ELEVATOR-Failure to post elevator inspection certificates; failure to pmv maintain amenities (e.g., ashtray, fan, recorded music).

8. FLOORS-Failure to wax floors; &mte areas in need of cleaning or dm

evidence that janitorial services are being regularly provided beeause most m a s are, in fact, cleau.

13. L I G m G IN RJBUC m A S m s s h g light bulbs where the lighting is otherwise adequate.

14. LOBBY OR HALLWAYS-Discontinuance of fresh cut flowem; removal of fkplace or fireplace andirons; modification of furniture; removal of some furnishings (determined on a case by case basis); removal of decorative mirrors; reduction in lobby space where reawnable access to tenant areas are maintain&, e%ation of public area door mc failure to maintain a lobby directory that is not associated with a building intercom; removal or replacement of window coverings (See DECORATIW AMENEJES, item 6).

15. MAE D I S W W O N - E f i ~ n a ~ o n of door-to-door or other methods of mail &s~bution where mailboxes m installed in a m e r approved by the U.3. Postal Service.

16. IdASONRY-Minor deterioration; failure to point exterior brich where there is no interior leak damage.

17. PAIWIWG-Change in color in public areas under certain circumsWes (e.g., not in violatian of the New York City Housing Maintenance Code); replaement of wallpaper or stenciling with paint in the public areas; isolated or minor areas where paint or plaster is peeling, or other similarly minor areas requiring repainting, provided there are no active water le*; any painfing condition in basement or c e h areas not usually meant for or used by tenants; any painSing condition that is limited to the top-floor bulkhead m a provided there is no active water leak in such area.

18. m C m m O N & F A C ~ G M M c a t i o n s , such as reasonable mbstiation of equipment, combination of anxi, or reduction in the number of items of ~ r t a i n equipment where overall facilities are maintained (See ROOF, item 19).

19. ROOF-Discontinuance of recreational use (e.g., sunbathing) unless a lease clause provides for such service, or f o d facilities (e.g., solarium) ace provided by the owner; lack of repairs where water does not leak inti the b d b g & the condition is not dangerous.

20. SINES-Failure to provide or maintah in compactor rooms or laundq rooms.

21. STORAGE SPACE-Removal or reduction of, unless storage space service is provided for in a specific rider to the lease (not a general clause in a standard form residential lease), or unless the owner has provided f d storage boxes or bins to tenants within thee years of the filing of a tenant's c o q l h t alleging an e w a t i o n or a . . reduction in stonige space m i c e .

Exhibit D

STATB Of HEW YORX DIVISIOM O f HOOSIHQ AND COMMUNITY RZEWAL

O??ICB OF ADMINI8TRATION Q2ATZ PLAZA

92-31 UMIOM HALL STREET JAMAICA, HEW YORK 11433

The above-named tenant filed a timely petition for administrative review (PAR) of an order issued concerning the housing acconunoda- tion known as 155 West 68th Street, Apartment 2028, New York, New York.

f

The Commissioner has reviewed all of the evidence in the record and has carefully considered that portion of the record relevant to the issues raised by the petition.

The tenant commenced the proceeding below by filing a complaint asserting that the owner had illegally demolished an enclosed garbage storage area and converted it to a store, with the result that garbage is now stored in basement hallways, attracting vermin and rodents.

In an answer, the owner asserted in pertinent part, that the former garbage storage area was in an independently owned commercial unit, that garbage is now deposited in a locked "air conditionedM room in the B-3 level of the building's garage, and that there has been no change in the manner in which residential tenants dispose of their garbage by depositing it in compactor chutes.

Thereafter an inspection of the subject building was conducted by a Division of Housing and Community Renewal (DHCR) inspector who reported that there was no evidence of garbage accumulation in any hallway and no evidence of infestation.

The Rent Administrator denied the tenant's application based upon the physical inspection.

In his petition the tenant contends in pertinent part, that the commercial unit owner had no right to use the garbage storage area which was an amenity provided to residential tenants, that the sanitation trucks used to back into this area to pick up the garbage, but that now the plastic garbage bags are placed on the sidewalk on pick-up days, becoming an obstacle to pedestrians and an attraction to street people and rodents.

The DHCR served a copy of the petition on the owner on December 2, 1987

The owner interposed an answer which stated that the tenant's petition neither raises any errors of fact or application of regulations nor any reasons for modifying or revoking the Adminis- trator's order.

After careful consideration, the Commissioner is of the opinion that the administrative appeal should be denied.

Pursuant to Section 2523.4 of the Rent Stabilization Cob, DHCR is repired to order the rent reduction, upon application by the tenant, where it is found that the owner has failed to maintain required services. The tenant's petition does not establish any basis for modifying or revoking the Administrator's order which determined that the owner was maintainin4 required services based on the physical inspection which found that there was no accumula- tion of garbage in public areas or infestation of vermin or rodents. The relocation of a garbage storage area that does not alter the manner in which tenants dispose of their garbage does not constitute a reduction in services.

THEREFORE, in accordance with the ~ent Stabilization Lav and Code and the Emergency Tenmt Protection Act of 1974, it is

ORDERED, that this petition be, and the same hereby is, denied, and that the Rent Administrator's order be, and the same hereby, is affirmed.

JOSEPH A. D'AGOSTA Deputy Commissioner

Exhibit E

STATE OF MEW YORK DIVISION OF HOUSING AMD COMMOHITY RENEWAL

OFFICE OF REMT ASMINISTRATSOH GERTZ PLAZA

9 2 - 3 1 TOUON HALL STREET iJAMAICA, NEWYORK 11433

x IN THE MATTER OF THE ADMINISTRATIVE APPEAL OF ADMINISTRATIVE REVIEW

DOCKET NO.: SG410107-RT

DOROTHY WHEAT

RENT ADMINISTRATOR'S DOCKET NO.: RL410015-B

PETITIONER X

ORDER AND OPINION DENYING PETITIONFOR ADMINISTRATIVE REVIEW

On July 30, 2004 the above-named petitioner-tenant filed a petition for administrative review (PAR) of an order issued on July 1, 2004 by the Rent Administrator concerning the housing accommodations known as 59 E. 7gth St., apartment 4B, New York, NY, wherein the Administrator terminatedthe tenant's complaint alleging a decrease in service.

The Commissioner has reviewed all of the evidence in the record and has carefully considered that portion of the record relevant to the issues raised by the petition.

In the PAR, the tenant states, that the owner illegally leased the basement space contrary to the certificate of occupancy which caused the owner to relocate the garbage trash area to a place that was inconvenient to the tenant since she is 79 years old and has degenerative arthritis. The owner answered on September 13, 2004 opposing the tenant's petition.

After careful consideration of the entire evidence of record, the

Commissioner is of the opinion that the petition should be denied.

The tenant filed a complaint dated December 15, 2003 alleging that since about 1998 the owner had relocated the trash area from the basement to an area on the basement landing which requires the tenant to negotiate several steps to reach. While the tenant went along with this for a while, she fractured her foot and ankle in 2001 which made climbing the steps to get to the garbage area a hardship. The tenant alleged that the garbage area was accessible directly from the elevator which stopped in the basement until about 1998 when the basement was illegally leased to a commercial tenant and the elevator no longer went to the basement.

An inspection was conducted on June 16, 2004 which found that garbage was stored at the bottom of the stairs landing area on the basement level about seventeen feet from the elevator lobby area. It required traveling up and down several steps to reach this area and then get back to the elevator. Based on th evidence of record including this inspection, the Administrator terminated the tenant's complaint finding that the relocation of the garbage storage area represented a de m i n i m i s condition rather than a decrease in service.

4

The Administrator properly terminated the tenant1 s complaint based on a determination that the relocation of the garbage storage area was de m i n i m i s . Pursuant to Section 2523.4 (e) of the Rent Stabilization Code, certain conditions which have only a minimal impact on tenants, do not affect the use and enjoyment of the premises and may exist despite regular maintenance of services are de m i n i m i s . Here, the record shows the garbage area was relocated only a few feet from the elevator, requiring the tenants to go down a few steps and then to come back up those steps to the elevator. While this may be an inconvenience, it does not rise to the level of a decrease in service.

Additionally, Section 2523.4(f) (1) of the Code holds, where more than four years have passed between the date the change occurred and the date of the complaint, there is a presumption that the condition is de m i n i m i s . Here, it appears the garbage storage area was relocated in 1998 and the tenant did not complain about the change until the end of 2003. There is therefore a presumption that this relocation of the storage area is de m i n i m i s .

THEREFORE, in accordance with t h e ~ e n t Stabilization Law and Code and Operational Bulletin 84-1, it is

ORDERED, that this petition be, and the same hereby is, denied, and that the Rent Administrator's order be, and the same hereby is, affirmed.

ISSUED : OEC 2 4 2004

PAUL A. ROLDAN Deputy Commissioner

Exhibit F

STATE OF MEW YORK DIVISION OF HOUSING AND COMMUNITY RENEWAL

OFFICE OF RENT ADMINISTRATION GERTZ PLAZA

92-31 DMION HALL STREET JAMAICA, MEWYORK 11433

- -

x IN THE MATTER OF THE ADMINISTRATIVE APPEAL OF ADMINISTRATIVE REVIEW

DOCKET NO.: OJ130039-RT

VARIOUS TENANTS c/o SALVATORE DELISE, tenant representative

RENT ADMINISTRATOR'S DOCKET NO. : OF130005-B

PETITIONER X

ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

On October 20, 2000 the above-named petitioner-tenant representative filed a petition for administrative review (PAR) of an order issued on October 13, 2000 by the Rent Administrator concerning the housing accommodations known as 35 -25 29 St. , Astoria, NY, wherein the Administrator, based on an inspection, denied the tenantst complaint alleging a decrease in services.

The Commissioner has reviewed all of the evidence in the record and has carefully considered. that portion of the record relevant to the issues raised by the petition.

In the PAR, the tenants state, that the inspection relied upon improperly determined there were two waste receptacles under the stairs when in actuality these receptacles were only for recycling and the tenants must deposit their garbage outside the building which represents a decrease in services since for twenty-five years after the incinerator rooms were closed garbage bags were distributed and garbage was picked up on each floor.

After careful consideration of the entire evidence of record, the Commissioner is of the opinion that the petition should be denied.

In the proceeding before the Administrator the owner acknowledged that there had previously been garbage collection on each floor but the system was changed due to sanitary reasons and the tenants now had to deposit their garbage outside the building. Therefore, the two receptacles under the stairs reported by the inspector were apparently not the receptacles for garbage collection. However, the tenants* complaint did not allege an inadequate number of receptacles but rather a change in the garbage collection procedure.

It is found that the owner did change the method of garbage collection but while this change inconvenienced tenants, it did not amount to a decrease in services. As noted by the owner, there is a potential for unsanitary conditions including the presence of vermin and rodents due to storage of garbage in the building. Under these circumstances, moving the garbage collection area outside the building was not unreasonable and would not so inconvenience the tenants so as to amount to a decrease in services.

THEREFORE, in accordance with the Rent StAbilization Law and Code, and Operational Bulletin 84-1, it is

ORDERED, that this petition be, and the same hereby is, denied, and that the Rent Administratorf s order be, and the same hereby is, affirmed.

ISSUED :

PAUL A. ROLDAN Deputy Cadasianer

Exhibit G

mw YORK CITY RENT sTmILI!zAmoN

corm% the service or equipment deficiency, the owner should set forth such facts in the response. Upon receipt thereof, in order to facilitate the resolution of the complaint, the DHCX may direct an inspector to accompany the owner or the owner's agent to the housing accommodation to determine whether such access is being provided. In order for DHCR to coordinate the inspection, the owner should indicate that access has been denied in the response submitted to the DHCR and should include copies of two letters to the tenant attempting to arrange for access. Each of the letters must have been mailed at least eight days prior to the date proposed for access, and must have been mailed by mtified mail, return receipt requested. Exceptions to such requirements for inspection may be permitted under emergency conditions, where special circumstances exist, or

conditions complained of as constituting a decrease in a required s

The following schedule sets forth conditions that will g e n d y not constitute a

where a condition, although included on the schedule, will nevertheless be found constitute a decrease in a required service.

SCHEDULE OF DE IHlNMlS CONDITIONS

B m D m G m E CONDITIONS

I . AIR CONDmONII?GEailwe to provide in lobby, hallways, stairwells, and nonenelosed public areas.

2. BUILDING EWlXANCE DOOR-Remod of canopy over unIwked to vestibule;-changes in door-lockhg devices, w h m semrity or access is

3. CARPETING-Change in color or quality under certain ckumsmces; isolated on otherwise clean carpets; frayed mas which do not create a t15pping hazard.

4. m m - m o v d of, whether or not dryers m pmvided.

in walls and ceilings.

6. DECORATWE --M&mtion (e.g., fountain replaced wi garden); removal of some or all for aesthetic reasons.

clean (Se JANITORIAL SERVICES, item 12).

Exhibit H

STATE OF MEW YORK DIVISION OF HOUSING AND COMMUNITY RENEWAL

OFFICE OF SSSm ADMINISTRATION GERTZ PLAZA

92-31 UNION HALL STRBBT JAMAICA, MY 11433

- - * - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW APPEAL OF DOCKET NO.: TC410072RT

STEVEN ALLEN MILLER, RENT ADMINISTRATOR' S

T NO. t TA4100308

ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW

On March 25, 2005, the above-named petitioner-tenant filed a Pe- tition for Administrative Review (PAR) of an order issued on February 18, 2005, by the Rent Administrator concerning the housing accommodation known as 237 West ath Street, Apartment 3, New York, New York. The Rent Administrator terminated the tenant's com- .pl.aint whjr-h alleged a decrease in cervices. The tsmiinoition was based upon the tenant's failure to submit convincing evidence to buttress his claim that roof services were a provided service.

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 petition.

On appeal, the tenant alleges that from the time he moved into the subject apartment in 1988, he had a roof key and that there were tables and chairs on the roof which he used for dining. The tenant also alleged that he did not fully understand what the term "formal services" meant; despite having used the term in his answer of February 11, 2005.

The owner filed an answer to the PAR, on April 18, 2005, opposing the tenant's claims.

After a careful consideration of the entire evidence of record, the Commissioner is of the opinion that the administrative appeal should be denied.

The record shows that on February 11, 2005, the tenant submitted an answer which stated, among other things, that there are no "formal servicesff on the roof and that his lease does not address the issue of roof access.

Without a clear and precise explication of the roof access issue in the lease, the owner had the right to deny roof access. No credi- ble or convincing evidence was adduced by the tenant to prove that roof access is a provided service. Moreover, Division policy regarding the owner's discontinuance of recreational roof use or formal roof facilities (e.g. solarium) is that the discontinuance is a de minimis building-wide condition unless a lease clause provides for such service or formal facilities are provided by the owner. (Also, see Rent Stabilization Code, Section 2523 - 4 {e) . ) Accordingly, no error was committed below.

THEREFORE, in accordance with the Rent Stabilization Law and Code, and Operational Bulletin 84-1, it is

ORDERED, that this petition be, and the same; hereby is, denied, and that the RentAdministratorrs order be, and the same hereby is, a f inned.

PAUL A. ROLDAN Deputy Commissioner

Exhibit J

STATE OF SEW YORK DIVISION OF HOUSING AND CCaOIDNITY

OFFICE OF RENT ADMIMISTRATION GERTZ PLAZA

92-31 UNION HALL STREET JAMAICA, NEW YORK 11433

IN THS MATTER OF THE X ADMINISTRATIVE APPBAL OF

:

PIK RECORD CO.

ADMINISTRATIVE REVIEW DOCKET NO.: QL430063RO

RENT ADMINISTRATORt S DOCKET N0.z NL430022RP (RECONSIDERTOQ MB430016B)

PETITIONER X

ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW

On December 31, 2002, the above named petitioner-owner filed a Petition for Administrative Review (PAR) of an Order issued on December 11, 2002 by the Rent Administrator concerning the housing accommodations known as 1 University Place, New York, New York, in which the Administrator directed the restoration of services and ordered rent reductions. The Administrator's Order was based on a determination that the owner's discontinuation of allowing tenants to have recreational use of the roof constitutes a decrease in services. This determination was reached pursuant to the findings of an Administrative Law Judge (ALJ) , after a Hearing had been conducted, which concluded that the discontinuation of roof access could not be considered a de m i n i m i s change.

In the PAR, the owner states that the Administrator, in granting the rent reductions, failed to follow DHCR's de m i n i m i s policy, which allows for discontinuation of recreational roof use unless either a lease clause provides for such service, or formal facilities have been provided by the owner.

The Codasioner has reviewed all of the evidence in the record and has carefully considered that portion of the record relevant to the issues raised by the petition. After careful consideration of the entire evidence of record, the Commissioner is of the opinion that the petition should be granted.

PAR Docket QL430063RO

Pursuant to Section 2523.4 of the Rent Stabilization Code and Section 2202.16 of the Rent and Eviction Regulations, DHCR is authorized to order a rent reduction, upon application by a tenant, where it is found that an owner has failed to maintain required or essential services. Section 2523.4{e) of the Code and DHCR Policy provide, however, that certain complained-of conditions may be de m i n i m i s in nature, and therefore they do not rise to the level of a failure to maintain a required service. The Code and the Policy Memorandum set forth the following specific example of a de m i n i m i s change with regard to roof use:

"Discontinuance of recreational use (e.g. sunbathing) unless a lease clause provides for such service or formal facilities (e.g. solarium) are provided by the owner."

In view of the above-referenced Code and Policy provision, the evidence of record in the instant proceeding supports the owner's claim that the complained-of discontinuation of recreational roof use is a de m i n i m i s change. The record contains no persuasive evidence that "formal facilities" as defined in the Code and Policy Memo have been provided since the base date. The only physical enhancements to the roof which the evidence shows are; tiling on the roof surface, railings atop the parapets, a metal framework for an awning, and an open-air showerhead attached to a pipe. There was also testimony at the Hearing indicating that metal chairs had been observed on the roof, but there is no conclusive evidence that these chairs had been placed there by the owner rather than tenants. Regarding the tiling and railings, the owner has claimed that these were installed for ornamental purposes at the time the building was constructed, which claim was unrefuted by the tenants. Regarding the awning framework, there is no evidence of an awning having been attached to this framework anytime since the base date (only one tenant testified as having observed a "rolled upn

awning on the framework, but the date when this was last observed is uncertain). Regarding the single open-air showerhead shown in one of the photos submitted by the tenants, this alone does not rise to the level of a formal facility as defined in the Code and Policy Memo, which set forth a "solarium" as an example of what is meant by this term.

The owner also claimed, during the proceedings before the Administrator, that there are no lease clauses which provide for recreational roof use. Sample copies of leases which had been executed in various years since the base date were submitted, none of which contained clauses providing for roof use. The tenants have not refuted the owner's claim that no such lease provisions exist.

As per the above-cited Code and Policy provisions, recreational roof use alone does not necessarily rise to the level of a required service. Although some tenants testified at the Hearing that they had been allowed to use the roof for such purposes as sunbathing,

PAR Docket QL430063RO

entertaining guests, watching fireworks displays, observing sunsets, etc., these uses clearly fall within the ambit of the recreational uses which both the Code and the Policy Memo specifically define as being de m i n i m i s (the example set forth, as indicated above, is "sunbathing"). The tenants also claimed that agents of the owner had held out the use of the roof to them as an inducement to rent. However, this also does not change the fact that discontinuation of the recreational use which had been so held out is defined as a de mini& change by both the Code and the Policy Memo. Additionally, it is noted that the roof use by the tenants was infrequent, irregular and erratic (the roof was not used on a daily, weekly or monthly basis), and it was thus not part of the tenants' daily enjoyment of their apartments.

The tenants also submitted a Brochure (which had been circulated when the building was constructed in the 1930'~)~ describing the availability of the roof for recreational use. This evidence, however, still does not alter the finding that the discontinuation of auch recreational use is a de m i n 1 m i s change as defined in the Code and the Policy Memo. Although the Brochure depicts a drawing which shows tables, chairs, umbrellas and an awning on the roof, there is no evidence that such "facilities" have been provided since the onset of the base-date, which would be thirty years or so after the printing of the Brochure. It is noted that, even though some tenants testified that the metal chairs' which had been observed (and even photographed) on the roof sometime after the base date looked to be the same as those depicted on the 1930's Brochure (ostensibly evidencing that chairs placed on the roof by the owner when the building first opened were still there at the onset of the base date), there is no conclusive proof that these were in fact the same chairs, nor was there any testimony stating that the owner (or its employees) had been observed installing the chairs which were on the roof after the base date.

It is further noted that there was testimony at the Hearing from a licensed architect which evidenced that utilizing the roof for recreational purposes in its present state (i.e. without performing major renovation work having an estimated total cost exceeding $600,000) would be illegal. The architect stated that, pursuant to New York City Building Code requirements, elevator access to the roof, as well as a second stairway, would be required in order to allow for tenant recreational use. Additionally, the architect testified that use of the roof is not included on the building's Certificate of Occupancy, which makes it illegal for the tenants to use the roof for recreational purposes. Testimony was then also taken from the owner's insurance broker, who stated that the roof would be uninsurable if it were to be used in violation of the law.

Under the specific facts of this case, the Commissioner finds the ALJ's conclusion, that the discontinuation of the recreational roof use is not de m i n i m i s , to be unsustainable. There is no evidence

PAS Docket QI1430063RO

that "formal facilities," as defined in the Code and Policy Memo, have been provided since the base date, and the owner's claim that there are no lease clauses providing for recreational roof use is unrefuted by the tenants. Therefore, in accordance with the Code and DHCR Policy, the discontinuation of roof access for the recreational purposes described by the tenants is a de m i n i m i s change, and it was thus improper for the Administrator to order rent reductions based upon this change of conditions.

Any rent arrears which have become due as a result of this determination shall be payable in equal monthly installments corresponding in number to the number of months which the rent reduction was in effect.

THEREFORE, in accordance with the Rent Stabilization Law and Code, and the Rent and Eviction Regulations, it is

ORDERED, that the petition be, and the same hereby is, granted, and that the Rent Administrator's Order be, and the same hereby is, revoked.

ISSUED : ^ 2 5 ~ , ,

Deputy Commissioner