BL120320RO
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
------------------------------------X
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF : DOCKET NO.: BL120320RO
:
VIVIAN TURRIAGO, : DRO DOCKET NO.:
: AH120097OR
:
:
PETITIONER :
------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner-petitioner timely refiled a Petition for
Administrative Review (PAR) of an order issued on September 28,
1987 by the Rent Administrator, 92-31 Union Hall Street, Jamaica,
NY, concerning the rent controlled housing accommodation known as
42-14 Union Street, Apt. 2G, Flushing, NY, wherein the Adminis-
trator issued an order restoring rent.
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 administrative appeal.
This proceeding was commenced on August 27, 1986 by the
owner's filing of an application to restore the rent for the
subject apartment, alleging that the decrease in services upon
which an April 29, 1986 order of rent reduction was based (ie,
inadequate heat and hot water service) had been restored.
On September 18, 1986, the tenant filed an answer stating that
the subject service had not been restored.
A Division inspector sent the tenant notices of inspection
appointments on two occasions. The first appointment was scheduled
for February 23, 1987, the second was scheduled for March 2, 1987.
The tenant failed to keep both appointments.
BL120320RO
In the order issued on September 28, 1987, the Administrator
granted the owner's application in whole, restoring the rent in the
amount of 7 1/2% per month. The order was based on the tenant's
failure to keep the scheduled inspection appointments.
In the PAR, the owner submits an April 23, 1986 Housing Court
Decision [DHPD v. Turriago, et al., Qns. Cty (Pt. 18C) Index No.
HP239/86, J. George] and asserts that there was a finding of two
days of inadequate heat and hot water because of repairs, that
there was no finding of penalties against the landlord, and that
the tenant's initial services complaint with the DHCR, filed April
8, 1986, was based on the same subject matter as that of the
Housing Court proceeding. The owner claims the Administrator's
order is arbitrary and capricious because the portion of the order
referencing the effective date of the restoration was left blank.
The owner argues that the order should be modified to show an
effective date of May 6, 1986--the date reflected on the rent
restoration application--because 1) the submitted court decision
attested to the subject restoration as of May 6, 1986, and 2) an
inspector was not sent out in May, 1986 to investigate heat and hot
water, but instead, it took the Administrator over sixteen months
to act upon the matter, which time delay should not inure to the
tenant's benefit.
The tenant did not file an answer to the PAR.
The Commissioner is of the opinion that the owner's petition
should be denied.
Review of the Housing Court decision shows that there was a
finding of two days of inadequate heat and hot water, which
confirmed the propriety of the Administrator's initial (April 29,
1986) order reducing the tenant's rent. While the decision stated
that no finding would be made for penalties due to an illegal
[heating] device, it nonetheless specifically imposed a $1,000.00
fine against the owner--$250 each day for heat and $250 each day
for hot water. Furthermore, the decision made no specific finding
that the subject service decreases were attributable to 'repairs.'
The claim that the Housing Court decision attested to the
restoration of heat and hot water service as of May 6, 1986 is
unfounded. The decision made no specific finding that heat and hot
water service had been restored. Moreover, the decision
specifically orders the respondent to maintain the heating device
in accordance with law to the extent it exists.
BL120320RO
The Administrator's failure to indicate an effective date in
the order did not render it defective. Section 2202.2 of the Rent
and Eviction Regulations prohibits the effectuation of a rental
adjustment prior to the date on which an order is issued. As such,
the rent restoration in the instant order took effect, by law, on
the first rent payment date following the issuance date of the
order, effective October 1, 1987. Therefore, the owner's request
that the rent restoration date be modified to take effect
retroactively to May 6, 1986 cannot be granted.
The owner's protests about the lengthy processing period and
the Division's failure to send an inspector to the premises in May,
1986 do not furnish a basis for reversal or modification of the
order.
THEREFORE, in accordance with the NYC Rent and Eviction
Regulations, it is
ORDERED, that this petition be, and the same hereby is, denied
and the Rent Administrator's order be, and the same hereby is,
affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
|
