ADM. REVIEW DOCKET NO.: BI 110248 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.:
BI 110248 RO
:
RENT ADMINISTRATOR'S
DOCKET NO.:
BA 110403 S
SUN MANAGEMENT CO
PETITIONER :
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On September 30, 1987, the above-named petitioner-owner filed
a petition for administrative review of an order issued on August
26, 1987, by the Rent Administrator, concerning the housing
accommodation known as 41-41 41st Street, Apartment 1B, Queens, New
York, wherein the Administrator determined the tenant's complaint
of a reduction of services filed on January 26, 1987.
The challenged order reduced the tenant's rent based on the
results of an inspection conducted on July 14, 1987 that confirmed
the tenant's complaint that the bedroom ceiling required repairs.
The inspector reported that while the bedroom had been painted
recently, the work was done in an unworkmanlike manner, in that the
ceiling should have been scraped and plastered prior to painting.
On appeal, the owner requests that the rent reduction be
revoked on the grounds that the owner was denied due process in
that the Administrator was denied due process in that the
Administrator failed to adhere to allegedly established procedures
providing the owner with notification of either the inspection or
the results thereof.
ADM. REVIEW DOCKET NO.: BI 110248 RO
However, the Division's procedures, now as then, do not
require that notice of the inspection be given to the parties
unless their presence is required, nor to apprise the parties of
the result. Moreover, the Courts have affirmed the Division's
position that there is no due process requirement to serve
inspection reports on the owner. Empress Manor v DHCR, 538 N.Y.S.
2d 49 (App Div. 2nd Dept.). The owner was afforded due process
notice by service of the tenant's complaint.
The owner suggests the tenant declined the owner's offer to
complete repairs. However, the July 1987 inspection revealed that
given access to paint the apartment, the work was not completed
properly.
The owner also argues that since the ceiling was painted it
cannot be said that there was a decrease in services. However, a
defective condition is not considered repaired in a workmanlike
manner unless defects are fully corrected. The owner's comments
further suggest that the owner intended to make superficial repairs
only.
Hence, the rent reduction was warranted as the owner failed to
correct the conditions although given the opportunity to do so.
The Commissioner also notes that the scope of an
administrative appeal is strictly limited to a review of the record
below, and not to consider new claims or evidence that could
reasonably have been presented to the Administrator for
consideration. Having failed to submit below the tenant's August
17, 1987 statement that she did not wish to have the ceiling
painted at the time, the owner could not submit the evidence for
the first time on appeal.
As an alternative remedy, the owner had the right to apply to
have the rent restored predicated on the tenant's refusal to permit
the owner to complete repairs, or, once the facts warranted, based
on a restoration of services. In fact, DHCR records reveal that on
August 1, 1988, the Administrator granted the owner's application
to restore rent per Docket No. BL-110168 OR filed on December 31,
1987.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that the owner's petition be denied and that the
Administrator's order be affirmed.
ADM. REVIEW DOCKET NO.: BI 110248 RO
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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