DHCR Decisions
DOCKET NUMBER: BH 120247-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.: BH 120247-RO
:
RENT ADMINISTRATOR'S DOCKET
RICHARD ALBERT NO.: AH 120584-S
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
AND REMANDING THE PROCEEDING TO THE RENT ADMINISTRATOR
On August 19, 1987, the above-named owner filed a petition or
administrative review of an order issued on July 31, 1987, by a Rent
Administrator concerning the housing accommodation known as Apartment 1D,
93-41 222nd Street, Queens Village, New York, wherein 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 issues
raised by the petition for review.
On August 27, 1986 the subject tenant, Elizabeth Blanda, filed two
separate applications for rent reductions based on the owner's alleged
failure to maintain services alleging in one that her apartment was
infested with cockroaches and in the other that the exterior frames and
sashes of the windows required painting.
On September 19, 1986 the owner, interposed an answer to the tenant's
complaint wherein he alleged inter alia that the tenant was denying access
to the exterminator.
On November 13, 1986 and on January 16, 1987 physical inspections of the
subject apartment were carried out by the Division of Housing and
Community Renewal (DHCR). The inspector, in his report, noted that the
window conditions were as alleged by the tenant.
On July 31, 1987 the Rent Administrator issued the order here under review
finding that a diminution of services had occurred and reducing the
tenant's monthly rental by nine dollars based on the defective window
conditions.
In his petition for administrative review the owner requests that the
administrator's order be rescinded alleging, inter alia, that he was
denied due process because the tenant's complaint was based upon cockroach
infestation and that he was denied the opportunity to interpose an answer
regarding the allegations of defective exterior window sashes and frames.
The owner further alleges that the tenant denied access to his painters
during the period in question. Attached to the petition are various
exhibits offered to substantiate these allegations.
After careful consideration the Commissioner is of the opinion that this
petition should be granted in part and that this proceeding should be
DOCKET NUMBER: BH 120247-RO
remanded to the Rent Administrator.
The Commissioner notes that this tenant filed two separate rent reduction
applications complaining about two different alleged diminutions of
service. A thorough review of the administrator's file contains no
evidence that both complaints were served upon the owner and the owner
alleges that, in fact, he only was served with the complaint
regarding cockroach infestation. The Commissioner further notes that the
owner did not default in the proceeding but interposed a lengthy answer
regarding the infestation allegations and that the owner by attachment to
the petition offers evidence which could have been interposed as a defense
to the complaint of decreased services irrespective of the inspection
results. Moreover, it appears from the record that neither the
administrator nor the inspector examined the complaint of cockroach
infestation.
Because of the abovementioned failure on the part of the administrator to
serve the owner with both complaints the owner was denied the opportunity
to answer the complaint, to raise the issue of denial of access, and to
investigate or correct the complained of conditions. This constituted a
denial of due process and accordingly, the administrator's order reducing
the rent must be revoked.
The Commissioner further determines that the proceeding should be remanded
to the Rent Administrator for further processing. On remand, both
complaints should be served on the owner to afford him the opportunity to
interpose a complete answer. The administrator should examine the
allegation of cockroach infestation which was overlooked in the original
proceeding and conduct further fact finding on all issues as well as
another inspection if deemed necessary.
If there are arrears due to the owner as a result of the instant
determination, the tenant shall be permitted to pay off the arrears in six
equal monthly installments beginning with the first rent payment date
after issuance of this order and opinion. Should the tenant vacate after
the issuance of this order or have already vacated, said arrears shall be
payable immediately.
THEREFORE, in accordance with the provisions of the Rent and Eviction
Regulations, it is
ORDERED, that this petition be, and the same hereby is, granted in part
and that the Rent Administrator's order be, and the same hereby is
revoked, and it is further
ORDERED, that this proceeding be, and the same hereby is, remanded to the
Rent Administrator for further processing in accordance with this order
and opinion.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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