Docket Number: BD-110323-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 110323-RO
:
HARRY C. PARTRIDGE DRO DOCKET NO.: BA 120092-HW
89th AVENUE REALTY CORP., :
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 13, 1987, the above-named petitioner-owner filed a petition
for administrative review against an order issued on March 12, 1987,
by an Administrator concerning the housing accommodation known as
148-25 89th Avenue, Jamaica, New York, Apartment 6P, wherein the
rent was reduced due to a diminution of service.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issue raised by the administrative appeal.
On January 15, 1987 the subject tenant filed an application for a
rent reduction based on the owner's alleged failure to maintain
service, alleging inadequate heat and hot water in the subject
apartment for various dates throughout the months of November,
December 1986 and January 1987.
The owner failed to reply to the tenant's complaint, although
afforded an opportunity to do so.
On March 12, 1987 the District Rent Administrator issued an order
reducing the maximum legal collectible rent by 7-1/2 percent per
month, effective on the first rent payment day following the date of
issuance of the order, based on a finding that the services of heat
and hot water were inadequate for the subject apartment.
On March 18, 19 7 the tenant submitted an affirmation of non-
compliance in which she alleged that on March 14 the heat was
inadequate; and on March 16, 1987 there was no hot water in the
subject apartment.
In its petition for administrative review the owner asserts that
adequate heat and hot water services are provided to the whole of
the subject building complex throughout the heating season without
incident; and that the tenant has a long history of non-existent and
uncorroborated services diminutions complaints.
Docket Number: BD-110323-RO
The owner further asserts that the tenant brought an "HP" proceeding
(index #HP30) in the Civil Court for alleged diminutions of
building-wide services which a full city inspection revealed were
non-existent (by inspection dated March 11, 1987). The owner
enclosed copies of those documents pertinent to the civil
proceeding. The outcome of the proceeding resulted in an order
awarding the owner rent arrears previously withheld by the tenant.
On August 3, 1987 the tenant answered the owner's petition stating
in pertinent part that during the week of July 27, 1987 there was
inadequate hot water in the morning.
The Commissioner is of the opinion that the owner's petition for
administrative review should be denied.
The Administrator's order was based on the owner's default and the
owner's petition does not establish that the Administrator's
determination should be modified or revoked. A review of the record
reveals that a properly addressed copy of the tenant's complaint was
sent to the owner and was not returned by the Post Office. The
owner has not asserted that the complaint was not received and has
offered no explanation for the failure to respond.
In addition, the evidence submitted by the owner for the first time
with the petition need not be considered in determining this
administrative appeal since no explanation has been given for the
failure to submit this evidence when the proceeding was pending
before the Administrator. Nevertheless, a review of this evidence
reveals that it is not pertinent to the issue of whether adequate
heat and hot water services are being provided. The physical
inspection conducted by the Office of Code Enforcement pursuant to
the Civil Court proceeding which found no violations did not address
the issue of inadequate heat and hot water.
Section 2202.16 of the Rent and Eviction Regulations authorizes a
decrease of the maximum rent when there has been a decrease in the
essential services required to be provided. Pursuant to this
section, the Administrator properly ordered a 7-1/2 percent rent
reduction based on the tenant's unrefuted allegation of inadequate
heat and hot water.
The Commissioner notes that the tenant has continued to assert in
answer to the owner's petition that hot water is inadequate and the
owner has still not filed for restoration of the rent.
THEREFORE, in accordance with the City Rent and Eviction
Regulations, it is
Docket Number: BD-110323-RO
ORDERED, that this petition be, and the same hereby is, denied and
the Administrator's order be and the same hereby is affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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