BL410158RT/BL410159RT/CB430033RT
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
APPEALS OF DOCKET NOS.:
BL410158RT/BL410159RT
CB430033RT
CAROL ULE, TENANT REPRESENTATIVE RENT
HENRY JACOBY, TENANT ADMINISTRATOR'S DOCKET
NO.: AK430093OR
PETITIONERS
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The above referenced administrative appeals have been
consolidated as all contain similar issues of law and fact.
The above named petitioner-tenants filed timely Petitions for
Administrative Review against an order of the Rent Administrator
issued October 25, 1987. The order concerned various housing
accommodations located at 305 Riverside Drive, New York, N.Y. The
Administrator granted the owner's application for rent restoration.
The Commissioner initially notes that thirty-five individual
tenants filed administrative appeals from the Administrator's
order. These petitions were rejected by the Commissioner with leave
to refile. The tenant representative, who had filed an
administrative appeal which was assigned Docket No. BL410519RT,
refiled the identical appeal on behalf of these tenants. The
refiled administrative appeal was assigned Docket No. CB430033RT.
Since the administrative appeals in Docket Nos. BL410159RT and
CB430033RT are identical they are consolidated for purposes of
decision herein. The petition of the individual tenant is also
consolidated for decision as stated above.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by these
appeals.
The owner commenced this proceeding on November 3, 1986 by
filing an application for rent restoration wherein he alleged that
he had restored services for which a rent reduction order had been
issued by the Administrator (Docket No. LCS000579B).
The tenants were served with a copy of the application and
afforded an opportunity to respond. Various tenants filed responses
BL410158RT/BL410159RT/CB430033RT
wherein, in sum, they urged that the application be denied because
the owner had not fully restored services.
To resolve the conflicting allegations of the parties, the
Administrator ordered a physical inspection of the subject
building. The inspection was conducted on June 24, 1987 and
revealed that the exterior of the building was in good condition;
that the public area windows and window frames were in good
condition; that there was no evidence of the steel lintels being
rusted; that the fencing in the front and side of the building was
in good condition, was not rusted and had been painted; and that
there was no visible evidence of infestation in the public areas.
The Administrator issued the order here under review on
October 28, 1987 and granted the owner's application. For rent
controlled tenants, rent restoration was ordered effective November
1, 1987. For rent stabilized tenants, rent restoration was ordered
effective February 1, 1987, plus all lawful subsequent increases.
Administrative appeals from the Administrator's order have
been filed by one rent controlled tenant and by an authorized
tenant representative. The Commissioner notes that the individual
tenant also joined in the filing submitted by the representative.
In his petition, the individual tenant states that the lintels have
not been repaired and remain hazardous and that other work done by
the owner was not done adequately. The petition was served on the
owner on January 29, 1988. The owner did not file a response.
The representative states that the responses submitted by the
tenants to the owner's application make clear that services were
never fully restored, that the tenants were not given notice of the
inspection, an opportunity to be present or to comment on the
results and that partial repairs are not sufficient to warrant
granting a rent restoration application. The tenants also seek
clarification of the effective dates of the rent restoration and of
the retroactive effect of the order. The petition was served on
the owner on January 29, 1988. The owner filed a response on March
28, 1988 wherein he stated that he had proven that he had restored
building services, that the physical inspection confirmed this to
be true and that his attempts to collect rent increases have been
lawful.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petitions should be denied.
The petition of the individual tenant contains two wholly
unproven statements. Numerous prior orders of the Commissioner
have stated that a DHCR inspection is entitled to more probative
weight than the unsupported allegations of a party to the
proceeding. Since this tenant has offered no proof in support of
his allegations, the petition is denied.
BL410158RT/BL410159RT/CB430033RT
Similarly, the petition of the representative does nothing
more than to restate the allegations contained in the various
tenant responses to the application. The tenants have offered no
proof to rebut the inspector's report which found that all
necessary repairs have been completed.
With regard to the claim that the tenants were entitled to
notice of the inspection, an opportunity to be present and an
opportunity to comment, it is the policy of the DHCR that the
service of a rent restoration application on the tenants puts the
tenants on notice of the owner's allegations of repairs and affords
them an opportunity to respond. There is no due process right to
notice of a DHCR inspection, an opportunity to be present or to
comment. The courts have upheld this policy with regard to owners
(see Empress Garden Apartments v. DHCR 147 A.D.2d 642, 538 N.Y.S.2d
38 [2nd. Dept., 1989], and the same principles are applicable to
tenants.
The tenants have requested clarification of the effective
dates for rent restoration contained in the Administrator's order,
stating that the owner is attempting to collect retroactive rent
arrears. With regard to rent controlled tenants, the Commissioner
notes that pursuant to Section 2202.2 of the Rent and Eviction
Regulations, a rent adjustment may not be effective prior to the
date on which the order was issued. With regard to rent stabilized
tenants, it is agency policy to order rent restoration effective
the first rent payment date following service of the owner's
application on the tenants. The Administrator correctly ordered
rent restoration for the rent controlled and rent stabilized
tenants of this building. This order is issued without prejudice
to the filing of rent overcharge complaints by any tenant who
believes the owner is collecting an improper rent. The order here
under review is affirmed.
THEREFORE, pursuant to the Rent Stabilization Law and Code and
Rent and Eviction Regulations it is
ORDERED, that these petitions be, and the same hereby are,
denied, and that the Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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