BH 210217-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 210217-RO;
JULIUS NOWAK/
RUSSELL REALTY,
RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONER AH 210705-S
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
IN PART
On August 17, 1987, the above-named petitioner-owner filed a peti-
tion for administrative review of an order issued on July 13, 1987,
by the Rent Administrator, concerning the housing accommodation
known as 957 Greene Avenue, Brooklyn, New York, Apartment D-9
wherein the Administrator determined the tenant's complaint of
decreased services filed on August 18, 1986.
The challenged order reduced the tenant's rent based on the results
of an inspection conducted on December 10, 1986 that confirmed the
tenant's complaints of defective windows and broken and missing
bathroom floor and wall tiles. Other conditions cited by the
tenant were not substantiated or were found to have been addressed.
The owner's answer below, reiterated on appeal, advised the Admin-
istrator of the installation of new windows subsequent to the
inspection. In fact, the tenant's affirmation of non-compliance
and the tenant's answer to the petition concede that new windows
were installed. Division records also reveal that the owner
applied for a major capital improvement (MCI) rent increase per
Docket No. BC 230072-OM. The record presented mandates that rent
reductions granted for defective windows be revoked.
The owner's answer below was silent as to the defective bathroom
tiles, other than to note generally that all repairs were performed
within a reasonable time after arrangements could be made to obtain
access to the tenant's apartment.
BH 210217-RO
On appeal, the owner asserts that the tenant made access difficult
despite adequate notice, and that its own inspection immediately
prior to the petition revealed, no missing, broken or loose wall
tiles, and only a hairline crack in the floor tile which was
promptly addressed.
The tenant disputed the owner's assertion of notice, and claims the
owner failed to provide advance notice so that she could arrange to
be home. The tenant acknowledges that the bathroom floor was
repaired on July 28, 1987, but asserts that the bathroom wall tiles
are still missing or loose.
The Administrator imposed a rent reduction based on the observa-
tions of the Division's inspector who reported defective bathroom
tiles. The inspector, a rent agency employee, was not a party to
the proceedings, and not an adversary to either the owner or the
tenant. His impartial observations were properly placed in the
record for the Administrator's consideration. The Adminisrator
properly afforded the inspector's observations great weight, par-
ticularly in light of the fact that the owner's answer failed to
speak specifically to the tenant's complaint.
The owner's bare assertion on appeal that its own inspection after
the date of the order found the bathroom tile in good condition was
not sufficient to warrant a reconsideration of the rent reduction
granted for these items. Repairs, if any, completed after the date
of the Administrator's determination do not provide a reason to
revoke the order. The owner also failed to establish that the
tenant had, in fact, denied the owner access upon proper advance
written notice.
Division records do reveal that the Administrator issued an order
on March 9, 1988 that granted the owner's rent restoration applica-
tion per Docket No. BH 220075-OR.
For the first time on appeal, the owner suggests that the rent
reduction order should be rescinded because the name of the com-
plainant was not the name of the then tenant of record. However, an
administrative appeal is strictly limited to a review of the facts
and issues before the Administrator. Having failed to raise the
issue below, the question cannot be considered for the first time
on appeal.
THEREFORE, in accordance with the City Rent Control Law and the
Rent and Eviction Regulations, it is,
BH 210217-RO
ORDERED, that the owner's petition be, and the same hereby is,
granted in part, to the extent of amending the rent reduction order
to revoke rent reductions granted for defective windows. Any rent
arrears due the owner from the tenant as a result of this order may
be paid over the course of the next three (3) months.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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