BH 610050-RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NY 11433
----------------------------------x
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
BH 610050-RO
AEOLUS GREENE, RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONER BA 510338-S
----------------------------------x
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 7, 1987, the above-named petitioner-owner filed a
Petition for Administrative Review against an order issued on July
6, 1987, by the Rent Administrator at Gertz Plaza, Jamaica,
New York, concerning the housing accommodations known as 42 West
120th Street, Apt. 2-A, New York, New York, wherein the Adminis-
trator determined that the owner had failed to maintain certain
services and ordered a rent reduction.
The Commissioner has reviewed all the evidence in the record and
has carefully considered that portion relevant to the issues raised
by the petition.
The tenant commenced this proceeding on January 15, 1987 when she
filed a complaint alleging numerous conditions throughout her
apartment requiring repair. Among the items complained of is the
refrigerator which the tenant said she purchased in 1982 after the
one the owner provided became inoperable and the owner refused to
replace it. Now her refrigerator is defective and the owner
refuses to give her a functioning one.
A copy of the complaint was mailed to the owner on February 2, 1987
with instructions to file an answer within twenty days. No answer
was received.
A physical inspection of the subject apartment by the Division of
Housing and Community Renewal (DHCR) took place on March 16, 1987.
The inspector reported that the two windows in the master bedroom
are defective, the walls and ceilings throughout the apartment have
peeling paint and plaster, and the refrigerator is defective.
BH 610050-RO
Based on the inspection report and the owner's default, the
Administrator ordered a rent reduction.
In the petition for administrative review, the owner asserts that
he purchased a refrigerator for the tenant on February 27, 1987 but
she refused it and purchased her own refrigerator, the cost of
which she deducted from the rent. The owner also states that the
tenant had her kitchen painted and deducted that from her rent as
well. Attached to the petition is a copy of an answer to the
complaint dated April 15, 1987 stating that the faucets and buzzer
were repaired, that the tenant refused access for painting, and
that the tenant has refused refrigerators the owner has purchased
and prefers to purchase her own which she should not be permitted
to do. Copies of receipts and money orders supporting the owner's
allegations were included with the petition.
The tenant answered and stated in relevant part that the windows in
the master bedroom had not been repaired and the master bedroom had
not been painted.
After careful consideration of the entire evidence of record, the
Commissioner is of the opinion that the petition should be denied.
It is noted at the outset that the scope of review in these
administrative appeals is limited by Section 2529.6 of the Rent
Stabilization Code to a review of the facts or evidence that were
before the Administrator unless the petitioner established that
certain facts or evidence could not reasonably have been offered or
included in the proceeding prior to the issuance of the order being
appealed.
In the instant case, although the owner included with the petition
a copy of an answer to the complaint, that answer was not in the
record that was before the Administrator and there is no proof that
the answer was either sent to or received by the Division. It is
also dated April 15, 1987, more that 20 days after the complaint
was served on the owner.
However, even considering the contents of that answer does not
warrant revocation of the rent reduction. There is no supporting
documentation regarding the purported denial of access and there is
no reference to any repairs or attempted repairs to the defective
windows in the master bedroom.
It appears to be undisputed that the tenant did purchase a refrig-
erator and deducted the cost from her rent. While the owner
correctly states that the tenant should not resort to self-help
BH 610050-RO
unless absolutely necessary, the owner must pursue his remedies
before a court of competent jurisdiction rather than this agency.
The owner is advised, however, that upon acceptance of the reduced
rent with the allowance for the refrigerator, the owner became the
owner of the refrigerator and therefore responsible for its repair
or replacement, as necessary.
The owner is advised to file a rent restoration application when
the peeling paint and plaster conditions throughout the apartment
have been corrected and the defective windows have been repaired or
the owner can establish by means of documentary evidence that the
tenant refused access for repairs.
Since the physical inspection confirmed the existence of defective
conditions requiring repair, the Administrator was required,
pursuant to Section 2523.4 of the Code to order a rent reduction.
The owner has not established in the petition that the order is not
warranted.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
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
|
