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
APPEAL OF DOCKET NO.: CC410004RT
M. Barry, DOCKET NO.: BF410731S
PETITIONER PREMISES: 170 2nd Ave.
New York, NY
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named tenant filed a timely petition for administrative
review of an order issued on January 28, 1988 concerning the housing
accommodations relating to the above-described docket number.
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 this administrative appeal.
This proceeding was commenced on June 26, 1987 by the tenant filing
a complaint asserting in substance that the owner had replaced the
windows with new ones which cannot be opened from the top without
difficulty and could possibly fall out; that the bottom window
cannot be opened all the way; that air conditioners cannot be used
in these windows because the top half is virtually nonfunctional;
that the windows diminish ventilation and are not "minimally open"
for access to the fire escape; and that these windows violate the
Housing Maintenance Code Section 27-2059 requiring at least one-half
of every window to open.
On August 19, 1987, DHCR transmitted a copy of the complaint to the
owner who filed an answer denying the allegations in the complaint
and stating that the new thermal break tilt windows are in good
working order; that minor adjustments were expected and were made in
the installation of replacement windows; that attached affidavit of
the property manager shows that over seventy (70) of the tenants'
apartments were surveyed with respect to the thermal windows and
only fourteen (14) requested adjustments; that the attached
affidavit of the contract manager of the window manufacturer shows
that these windows have the latest features in energy conservation
and that in response to the survey, adjustments/minor repairs were
made on several occasions in various apartments; and that the
attached affidavit of the manager of the corporation which installed
the windows describes the adjustments and inspections pursuant to
the survey and that the tenant in Apt.9E refused access because
there were allegedly no problems with the windows.
Thereafter, an on-site inspection of the subject apartment was
conducted on November 13, 1987 by a DHCR staff member who reported
that "one living room window top sash" and "bathroom window top
sash" are "difficult to open".
By order dated January 28, 1988, the Administrator directed the
restoration of services based on the inspection results. The order
The tenant did request a rent reduction.
Based on the evidence, a rent reduction is not warranted.
In the petition for administrative review, the tenant contends that
the "poorly designed" windows still exist; a rent reduction was
granted to other tenants with exactly the same windows and problems;
and he requests a hearing.
In answer, the owner asserts that the petition is a bare, self-
serving claim that the windows are defective; the tenant cannot
apply the rent reduction warranted in other apartments because every
apartment is different; and no hearing is required when the
Administrator's determination is based on the conclusive findings of
the inspection and the evidence in the record.
The Commissioner is of the opinion that the petition should be
The Administrator's determination was based on the entire evidence
in the record, including the results of the November 13, 1987
inspection which found one living room window top sash and bathroom
window top sash difficult to open, deficiencies not warranting a
The tenant's assertion that rent reductions were granted in other
apartments is irrelevant because the defective windows in others if
any may be of a more serious nature.
A hearing is not required. When the Administrator's determination
was sufficiently based on the conclusive findings of the inspection
and the whole record, as in this case, the Commissioner finds that
there is no abuse of discretion which warrants reversal or
modification of the order appealed from. Accordingly, the
determination was in all respects proper and is hereby sustained.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that this petition be, and the same hereby is, denied, and
that the Administrator's order be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA