Docket Number: BD-610209-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.: BD 610209-RO
:
RALPH LANGSAM ASSOCIATES, DRO DOCKET NO.: BA 610058-HW
PETITIONER :
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ORDER AND OPINION ON RECONSIDERATION GRANTING PETITION
FOR ADMINISTRATIVE REVIEW
On April 15, 1987, the above-named petitioner-owner filed a
petition for administrative review against an order issued on March
11, 1987, by the District Rent Administrator at Gertz Plaza,
Jamaica, New York, concerning the housing accommodations known as
3510 Decatur Avenue, Bronx, New York, Apartment 1B, wherein the
Administrator determined that the owner had not maintained services
in that the owner had failed to provide adequate heat, and
accordingly reduced the rent.
On February 12, 1991, the Commissioner issued an order and opinion
denying the owner's petition and affirming the Administrator's
order. The owner's contention that an inspection should have been
conducted was dismissed, since the record below contained no answer
from the owner or any other evidence that challenged the tenant's
allegations and was thus sufficient to support a finding of
inadequate heat.
On April 2, 1991, pursuant to a request for reconsideration dated
March 5, 1991, an order was issued reopening the administrative
review proceeding at the request of the owner, who had also
submitted a copy of its answer to the tenants' complaint dated
February 24, 1987, a receipt for mailing of certified mail on March
2, 1987, and a receipt for delivery thereof dated March 4, 1987,
which was signed by a staff member of the Division.
Finding that the newly discovered evidence related to a vital
matter, and that there was unchallenged evidence that it had been
timely submitted into the record below, the Commissioner ordered
that the proceeding be reopened and that the tenant be afforded
twenty (20) days to respond to the owner's written request for
reconsideration.
The tenant has not responded to the owner's request for
reconsideration and the reopening of the proceeding.
Docket Number: BD-610209-RO
The tenant originally commenced the proceedings on January 23, 1987
by filing a complaint of decrease in apartment services,
complaining that the owner had failed to maintain adequate heat;
specifically, that heat is only provided for 15 minutes each
morning and is never provided at night.
The owner was served with a copy of the complaint on February 10,
1987 and directed to restore services and to respond to the
tenant's allegations.
On February 13, 1987, the tenant notified the Division that the
owner had continued to maintain inadequate heating service.
The owner's answer, which was received by the DHCR on March 4,
1987, but not admitted into the record, stated that the apartment
was being heated well in excess of the legally required 55o, and
that the tenant's complaint therefore has no foundation. The owner
contended that because it becomes colder at night, the tenant
wrongfully charged that no heat was being provided.
On March 11, 1987 the District Rent Administrator issued the order
hereunder review finding that a diminution of services had occurred
and reducing the tenant's rent to the level in effect prior to the
last rent guidelines increase commencing before the effective date
of the order.
In its petition, dated April 15, 1987, the owner contends that the
rent reduction is unwarranted since there was no inspection by the
Division to substantiate the tenant's complaint. The owner claims
that several inspectors from the Department of Buildings had
"always found the apartment properly heated."
In its request for reconsideration, the owner further contends that
the Administrator's order was invalid and should be revoked because
it was solely, and erroneously based on the owner's failure to
respond. This was why the Administrator decided to forego an
inspection and to find for the tenant without further evidence.
However, the owner continues, since it has been shown that the
owner did respond to the complaint, and denied its allegations, the
Administrator should then have conducted an inspection to
determine whether the allegations were correct.
The Commissioner is of the opinion that the owner's petition should
be granted and that the Administrator's order be revoked.
The record in this case establishes that the Administrator's order
was entirely based upon the owner's failure to respond to the
complaint and that, following the tenant's reaffirmation of her
complaint of inadequate heat, a rent reduction was ordered without
any further investigation by the Division. Furthermore, the
owner's petition, since it did not assert that the owner had
Docket Number: BD-610209-RO
answered the complaint, presented no reason to presume that the
order was in any way invalid. The Commissioner recognizes that
those determinations were appropriate, based upon the existing
record at that time.
Subsequently, however, the owner has documented its timely response
to the complaint, and that this response was actually received by
the Division, which circumstances considerately alter the
complexion of this case.
The Commissioner finds that the Administrator improperly deemed the
tenant's allegations admitted and incorrectly adjusted the rent
upon a finding that the owner failed to provide adequate heat.
Accordingly, the reduction order must be revoked in its entirety.
The tenant is advised to file a new complaint of reduced services
should the owner fail to provide adequate heating.
This order and opinion shall have such effect as to restore the
tenant's rent to the level in effect prior to the rent reduction
ordered by the Rent Administrator; to direct the payment of such
arrears by the tenant in twenty-four (24) equal monthly
installments, and to permit the owner to apply for other rent
increases for which the owner was otherwise eligible since the
effective date of the order herein revoked.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this Petition be, and the same hereby is, granted and
that the Administrator's order be and the same hereby is revoked.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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