ADM. REVIEW DOCKET NO.: BG-230330 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.:
BG-230330 RO
:
DRO ORDER NO.:
AJ 230067-B
DITMAS MANAGEMENT CORP
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
IN PART
On September 30, 1987, the above-named petitioner owner
properly refiled and perfected a Petition for Administrative
Review (PAR) against an order issued on June 19, 1987 by the Rent
Administrator, Gertz Plaza, Jamaica, New York, concerning the
housing accommodations known as 9281 Shore Road, Brooklyn, New
York, wherein the Administrator determined the tenants' complaint
of a reduction of building wide services.
The challenged order reduced rents for rent controlled and
rent stabilized tenants based upon the result of an inspection
conducted on December 29, 1987. The inspector reported, in
pertinent part, that window panes in public areas were cracked
and had small hoes, and that the concrete sidewalk outside the
building was cracked. Additional allegations cited in the
tenants' complaints regarding the building's basement, drainage
system, roof, foundation and fire escapes were not confirmed.
On appeal, the owner argues that the Administrator's
findings regarding the windows should be revoked on the grounds
of lack of due process. The owner points out that the complaint
alleged that the hallway windows did not conform with "thermal
and acoustic insulation guidelines." The owner contends that it
was erroneous for the Administrator to order rent reductions
based upon cracked windows, when no such allegation was made or
suggested in the tenants' complaint.
The owner also asserts on appeal that the owner solicited a
proposal and hired a contractor to repair the sidewalk within one
week after filing an answer to the tenants' complaint, and that
the work was completed three months before the Administrator
issued the rent reduction order. In support the owner submits a
copy of the repair contract and a statement from the contractor
that the work was completed and paid for.
ADM. REVIEW DOCKET NO.: BG-230330 RO
Various tenants responded that repairs requested in the
original complaint had not been completed.
In reply the owner pointed out that the tenants' statements
were not credible and were belied by the Administrator's order
dated December 4, 1987 (BG-210068-OR) which restored the tenants'
rent based on an inspection held on October 30, 1987 which found
that windows in all public areas and sidewalk concrete had been
repaired.
The applicable law is Section 2520.6(r) and 2523.4 of the
Rent Stabilization Code and Section 2202.16 of the Rent and
Eviction Regulations.
After careful consideration the Commissioner is of the
opinion that the petition should be granted in part.
The Commissioner concurs with the owner that the tenants'
complaint of alleged "thermal and acoustic insulation guidelines"
deficiencies was insufficient to give the owner notice that the
windows were broken, cracked or defective in any way. Nor was
the complaint sufficient to prompt the owner to make an
inspection; it suggested instead that their technical
specifications and manufacture failed to comply with industry
and statutory standards. Consequently, the condition should be
revoked as basis for rent reductions.
Concerning the sidewalk condition, the Commissioner notes
that, other than the statement in the answer below of the owner's
intent to make repairs, the owner never notified the
Administrator that sidewalk repairs had been undertaken or
completed. Based on the record below, including the inspection
report, the Administrator's determination was proper when issued.
The Commissioner further notes that the scope of
administrative review is limited to consideration of issues and
evidence before the Administrator. In the absence of a showing
that the evidence could not reasonably have been offered or
included in the proceeding below, the documents regarding
sidewalk repairs may not be considered for the first time on
appeal.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, the City Rent Control Law and the
Rent and Eviction Regulations, it is
ORDERED, that the owner's petition be granted in part, in
that the defective and broken windowpanes be revoked as a basis
for rent reductions, and that the $3.00 per month rent reductions
granted to rent controlled tenants for this condition be revoked
and refunded to the owner. In all other respects, the
ADM. REVIEW DOCKET NO.: BG-230330 RO
Administrator's order is affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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