STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.:
JULIA ROYAL, CC410365RO
CHARLES M. MC MICKENS, DOCKET NOS.:
Petitioner Owner KC000169HH
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The above-named tenant filed a timely petition for administrative
review (PAR) of an order issued February 17, 1988, concerning the
housing accommodations known as 292 Carlton Avenue, Basement,
Brooklyn, New York, wherein the Rent Administrator restored the
tenant's rent previously reduced per Docket No. KC000169HH.
The above-named owner also filed a timely petition for administra-
tive review of the Rent Administrator's order.
The Commissioner has reviewed all the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the petition.
The owner commenced these proceedings by filing an application to
restore rent previously reduced by 7«% of the then maximum legal
collectible rent on July 25, 1985 per Docket No. KC000169HH for
failure to provide heat and hot water services.
The tenant opposed the owner's application asserting that, in fact,
the owner was not providing adequate heat and hot water on a
consistent basis. In support, the tenant submitted notices of
violations from the City Department of Housing Preservation and
Development (HPD) dated October 28, 1987 and November 2, 1987
citing inadequate heat and hot water services for the subject
Thereafter, on written notice to the tenant, inspections were
attempted by a DHCR inspector on December 14 and December 23, 1987.
The inspector reported that repeated ringing and knocking brought
no response from the tenant.
The Rent Administrator issued an order on February 17, 1988
granting the owner's rent restoration application based on the
tenant's failure to keep two scheduled inspection appointments.
In the petition for administrative review, the tenant urges the
Commissioner to reverse the Rent Administrator's order. The tenant
reiterates the arguments below that the application was defective
because a copy of the rent reduction order was not included with
the application, and that the owner was harassing the tenant.
The tenant also contends that the DHCR lacks authority to grant a
rent restoration without the tenant's voluntary written agreement
to an adjustment of the rent, as allegedly provided in Section
2202.4 of the City Rent and Eviction Regulations.
The tenant also submits copies of additional City HPD notices of
violations for inadequate heat and hot water, dated January 28,
The owner's petition for administrative review requests the
Commissioner to amend the rent restoration order to reflect that
the tenant's pre-reduction legal rent controlled rent was $89.16
After careful consideration, the Commissioner is of the opinion
that the tenant's and owner's petitions should be denied.
In order to render a determination in rent restoration proceedings,
the Rent Administrator must ascertain whether the conditions that
gave rise to the rent reduction have been corrected. Notwith-
standing the tenant's evidence below of October and November 1987
HPD notices of violations, the tenant did not subsequently provide
the DHCR inspector access to the apartment in December 1987 to
ascertain the then current heat and hot water conditions. Since
the tenant did not comply with her obligation to cooperate with the
Rent Administrator, it would have been improper to continue to
penalize the owner.
The tenant's reliance on Section 2202.4 of the City Rent and
Eviction Regulations is misplaced. The owner correctly points out
that Section 2202.4 refers to voluntary and mutually agreeable
change of service to which the tenant and the owner both consent.
The underlying rent reduction order was predicated on the fact that
the owner had failed to maintain base date essential services the
owner was already obligated to provide and maintain. The rent
restoration application, based on the assertion that the owner
restored heat and hot water services, does not constitute a change
in essential services.
The Commissioner also notes that the owner did provide a copy of
the reduction order to the Rent Administrator upon further request.
Owners are requested to submit a copy of the rent reduction order
with the rent restoration application to facilitate processing.
The fact that it may not have been served on the tenant did not
raise any issue of due process, warranting reconsideration of the
Rent Administrator's order.
The rent restoration proceedings are limited to a determination
based on evidence below whether the owner has corrected conditions
previously found to have been defective. Issues raised in
harassment and other proceedings are not matters for disposition by
the Rent Administrator responsible for tenant services, although
some matters may have overlapped with the services restoration
questions herein. Concerning the tenant's allegation, below and on
appeal, of harassment, DHCR records indicate the DHCR Enforcement
Bureau, after review and evaluation of the tenant's harassment
complaint (Docket No. 17,438HL) advised the tenant that no Enforce-
ment Bureau action was warranted because the tenant's complaints
did not constitute violations of the harassment sections of the
rent regulatory laws.
Copies of additional heat and hot water violations submitted by the
tenant for the first time on appeal, as well as evidence submitted
by the owner on appeal that the tenant may have denied the owner
and his agents access to effect repairs, cannot be considered,
since they are beyond the scope of review, which is limited to a
review of the evidence before the Administrator.
Moreover, the tenant's contention as to defective conditions not
cited in the rent reduction order are not properly raised in the
rent restoration proceeding or the administrative review proceed-
ings thereof. If they were the proper subject of a challenge to
the rent reduction order, the time period for challenging the rent
reduction order has passed.
Concerning the owner's petition, the Commissioner notes that the
Rent Administrator's rent restoration order properly set forth that
"The Maximum/Legal Regulated Rent was restored in the amount of [$]
7«% . . . ", i.e., the rent reduction granted. Moreover, rent
restoration proceedings are not the proper vehicle to ascertain
and/or establish the maximum legal regulated rent of the subject
premises. The Commissioner notes the existence of a number of DHCR
proceedings, both closed and pending, between the parties con-
cerning the subject premises, that may affect or have substantial
impact on the monthly rent.
THEREFORE, in accordance with the Rent and Eviction Law and Regula-
tions for New York City, 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,
JOSEPH A. D'AGOSTA