BF 420110 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.: BF420110-RO
BRADFORD N. SWEET ASSOCIATES DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: AB 520091 S
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 29, 1987 the above named petitioner-owner timely
filed a Petition for Administrative Review against an order of
the Rent Administrator issued April 24, 1987. The order
concerned housing accommodations known as Apt. 56 located at 31
Tiemann Place, New York, N.Y. wherein the Administrator ordered a
rent reduction for failure to maintain required or essential
services.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The tenants commenced this proceeding on January 31, 1986 by
filing a Statement of Complaint of Decrease in Services, wherein
the following services deficiencies were alleged:
1. Loose ornamental window guard railing as well
as inoperative window
2. Bathroom ceiling rusted out
3. Bathroom wall collapsing
4. Hall floor planks collapsing
5. Bedroom and hall planks splintered
6. Living room light fixture broken
7. Broken valve in bedroom radiator
8. Entrance door not fireproof
9. Inoperative door bell
10. Inoperative bathtub drain
11. Living room ceiling collapsing
12. Numerous large cracks in walls
A copy of the complaint was served on the owner and an
opportunity was given to respond thereto. The owner filed a
response on March 27, 1986 wherein it asserted that repairs had
been effected on all items of the tenants' complaint.
The Administrator ordered a physical inspection of the
premises. This inspection was conducted on November 24, 1986 and
revealed the following:
1. Defective electrical fixtures in living room;
no electricity in room
2. Bathtub drainage slow
3. Defective paint and plaster throughout
apartment
4. Worn and splintered floors in living room,
bedroom and foyer
5. Inoperative bedroom radiator valve
6. Two windows and frames at living room
and one in bedroom defective
7. Inoperative apartment door bell.
The Administrator ordered a $35.00 rent reduction based on the
inspector's report. The Commissioner notes that this apartment
was subsequently purchased by the tenants.
On appeal the owner, through counsel, raises two grounds for
reversal of the Administrator's order. They are: (1) withdrawal
of the complaint by the tenants and (2) failure to give the owner
due process. Petitioner's initial argument is that the owner
addressed the tenants' complaints and corrected them. The
tenants allegedly signed acknowledgements that the work had been
done. It is the owner's contention that these acknowledgements
should be read as the tenants' wish to withdraw the complaint.
The due process denial the owner refers to is the failure to give
it notice of the inspection and serve it with a copy of the
inspector's report. The owner argues that these omissions
constitute a violation of DHCR procedure. The tenant did not
file a response to the petition.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be
denied.
The Commissioner rejects the petitioner's first argument
regarding withdrawal of the complaint. In the first place, the
tenant's actions do not constitute a recognizable withdrawal. The
tenants have never stated an affirmative desire that this
complaint be withdrawn. The Commissioner notes that there is a
substantial question as to whether the repairs the owner speaks
of have been done, in that the inspector's report contradicts the
statements of the owner. It is settled that such a report is
entitled to more probative weight than the statements of a party
to the proceeding.
Petitioner's second argument, i.e. due process denial for
failure to give notice of the inspection and a copy of the
inspector's report, has been presented to the Commissioner and
rejected on other occasions. The Commissioner has consistently
held that the filing of the complaint puts the owner on notice of
the conditions and the need to investigate and correct them. Due
process does not require that the owner be given any further
notice or a copy of the inspector's report (See Empress Manor
Apartments v. DHCR 147 AD 2d. 642,538 NYS 2d 49 [2nd Dept.,
1989]). The order here under review is, therefore, affirmed.
THEREFORE, pursuant to the Rent and Eviction Regulations for
New York City 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:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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