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.: BI 110146-RT
:
DISTRICT RENT ADMINISTRATOR'S
LUCILLE KUPCS DOCKET NO.: AJ 110013-OR
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 1, 1987, the above-named tenant filed a petition for
administrative review of an order issued on August 24, 1987, by a District
Rent Administrator concerning the housing accommodation known as Apartment
2, 77-18 249th Street, Bellerose, New York, wherein rent was restored due
to a restoration of service, effective on November 1, 1986.
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 October 21, 1986 the tenant interposed an answer to the owner's
application stating, "To date linoleum has not been replaced.
On June 30, 1987, a physical inspection of the subject apartment was
carried out by the Division of Housing and Community Renewal DHCR. The
inspector, in his report, noted that the apartment had been painted, the
linoleum replaced, and that there was no evidence of the stove's being
defective.
On August 24, 19987 the District Rent Administrator issued the order here
under review finding that a restoration of services had occurred and
restoring the tenant's rent to its former level effective November 1,
1986.
In her petition for administrative review the tenant requests reversal of
the administrator's order alleging inter alia that the peeling paint
condition had recurred and that the September 21, 1987 DHCR inspection and
order under docket number AD 110012-OR corroborates this fact. She
further alleges that the linoleum has a hole in it.
The owner did not interpose an answer to the tenant's petition although
afforded the opportunity to do so.
After careful consideration the Commissioner is of the opinion that this
petition should be denied.
DOCKET NUMBER: BI 110146-RT
The Commissioner notes that the tenant in her October 21, 1986 answer to
the owner's application alleged only that the linoleum had not been
replaced. The inspection carried out on June 30, 1987 revealed the
contrary. The tenant had raised no other objections to the owner's
application. Accordingly, based upon the entire record before the
administrator the Commissioner is of the opinion that the order under
review was warranted.
The Commissioner notes that the order issued on November 6, 1987
purporting to deny the owner's rent restoration application is of no legal
effect since the rent had already been restored. The inspection conducted
on September 21, 1987, nevertheless is of evidentiary value in that it is
probative of conditions existing on that date. However, the Commissioner
notes that the inspection cited by the tenant occurred more than two years
after the inspection which established the diminution of service and more
than one year after the tenant informed that Compliance Bureau of this
Division that painting had been effectuated in a workmanlike manner.
Accordingly, based upon a preponderance of the evidence and a lack of
evidentiary showing to the contrary the Commissioner can not find that the
conditions cited in the September 21, 1987 inspection were related to the
original diminution of service and not of independent origin and
causation.
Accordingly, this order and opinion is issued without prejudice to the
tenant's rights as they may pertain to a de novo application for a rent
reduction based upon a diminution of service.
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 District Rent Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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