BJ110088RT; BJ130288RT
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 NOS.:
BJ110088RT; BJ130288RT
BURTON SYKEN,
RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONER BA110002OR
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On October 16, 1987, the above named petitioner-tenant filed a
petition for administrative review (PAR) assigned PAR Docket No. BJ
110088RT, appealing an order issued on September 17, 1987 by the
Rent Administrator, concerning the housing accommodation known as
263-10 73rd Avenue, Apartment 95E2-2, Queens, New York, wherein the
Administrator determined the owner's application to restore rents
previously reduced per Docket Nos. TC077656B and Q000893B, issued
respectively on February 11, 1985 and October 28, 1985.
A duplicate PAR was inadvertently established per PAR Docket No.
BJ130288RT.
In the rent reduction proceedings, it was confirmed that there were
potholes in the driveway areas, that the driveway area leading to
the garage was flooded due to a clogged catch basin, that the
clotheslines were missing and that the clotheslines area concrete
pad was broken.
In the application to restore rent, the owner claimed that the
conditions cited in the rent reduction orders had been corrected.
In support, the owner attached copies of work orders concerning
pothole repairs and catch basins, although they were not signed by
the tenant.
The tenant disputed the owner's claims. In responses dated February
10, 1987, March 31, 1987, and May 2, 1987, the tenant alleged that
the driveway catch basin, as well as two additional catch basins in
the "dumpster area" were still clogged and that the potholes had
re-appeared. The tenant acknowledged that the clotheslines area
and equipment had been repaired, but complained that only 75% of
the concrete pad was replaced, while the surrounding area, adjacent
to the clotheslines poles was dirtfill.
BJ110088RT; BJ130288RT
The challenged order restored the tenant's rent based on the
results of a subsequent inspection conducted on June 17, 1987,
wherein the inspector reported that there was no evidence of a
clogged catch basin at the time of the inspection, no evidence of
potholes in the driveway leading to the garage, and that clothes-
line area concrete pad and equipment had been repaired.
On appeal, the tenant reiterates the assertions below. In addi-
tion, the tenant suggests that the inspection was improper as to
the catch basin issue if it was done on a sunny day, contends that
the order does not address the alleged reduction of the clothes-
lines area, and claims that clotheslines were reduced from nine (9)
to five (5).
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.
The report of the Division's inspector belied the tenant's asser-
tion below that pothole patches had deteriorated and that new
potholes had formed. In light of the record, the tenant's recita-
tion of the identical complaint on appeal does not warrant further
consideration.
The tenant's suggestion that the inspection was not adequate as to
the catch basin matter, if the inspection was conducted on a sunny
day, constitutes mere speculation as to the weather conditions on
the date of the inspection. The tenant's speculation is insuffi-
cient to establish that there were errors of law and fact requiring
a different result or reconsideration. Furthermore, the record
below, which includes inspection reports and the owner's work
orders, supports the owner's claim that the driveway catch basin
was cleared.
The tenant's further allegation below and on appeal that additional
catch basins in the dumpster area are clogged, adding to driveway
flooding problems, are not properly raised. The rent restoration
proceedings below and the instant administrative appeal are
strictly limited to a review of whether of the items cited in the
underlying rent reduction proceedings have been corrected, and not
to consider new claims or evidence.
The Commissioner also notes that, while the specific problems in
these proceedings concern events that occurred several years ago,
certain of the items could be expected to reoccur in the absence of
adequate and periodic maintenance. The Division's records fail to
reveal that the tenant filed a subsequent service decrease com-
plaint for similar conditions alleged herein since the rent
restoration order was issued.
BJ110088RT; BJ130288RT
The tenant has also suggested, below and on appeal, that the
clothesline area repairs modifying the clotheslines area concrete
pad, into 75% concrete and 25% dirtfill or lawn area, constitutes
a service decrease. Since no space was appropriated from the
tenant, and in light of the inspector's report indicating that
repairs were adequate, it cannot be concluded that a decrease in
space or services has occurred.
Concerning the tenant's allegation that the number of available
clotheslines had been reduced from nine (9) to five (5), amounting
to a service decrease, the Commissioner notes that the tenant did
not raise any objection to this element in the rent restoration
proceedings below, precluding the Commissioner's consideration of
the issue for the first time on appeal as a factor in the rent
restoration.
The record reveals that, as to the question of repair to the
clothesline equipment the Compliance Bureau reached a similar
conclusion. An inspection conducted on July 7, 1988, at their
request, found a total of twenty-eight (28) separate clotheslines.
While noting that it was impossible to determine by inspection if,
at one time, there were more than seven pairs of poles, and more
than twenty-eight (28) clotheslines, the Compliance Bureau
concluded that the owner had complied with the Administrator's
directive to restore the services.
THEREFORE, in accordance with the provisions of the Rent Stabili-
zation Law and Code, it is,
ORDERED, that the tenant's petition be, and the same hereby is,
denied, and that the Rent Administrator's order be, and the same
hereby is, affirmed. The PAR proceedings per Docket No. BJ130188RT
are hereby terminated as duplicative and moot.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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