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STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL
JAMAICA, NY 11433
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
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Kingswood Management Corp.,
RENT ADMINISTRATOR'S
DOCKET NO.:
BJ210783S
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 23, 1988, the above-named petitioner-owner filed a petition
for administrative review (PAR) of an order issued on April 18,
1988, by the Rent Administrator, concerning the housing
accommodation known as 3855 Shore Parkway, Brooklyn, N.Y.,
Apt. 1-E, wherein the Administrator determined that a reduction in
rent was warranted based upon a reduction in services.
The Rent Administrator also directed full restoration of services.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issue raised by the administrative appeal.
The issue herein is whether the Rent Administrator properly reduced
the rent of the subject apartment.
On August 5, 1987, the tenant filed a complaint alleging that the
owner failed to maintain certain services in the subject apartment.
The owner filed an answer to the complaint alleging that all the
items listed by the tenant have been resolved by the superintendent
in conjunction with the tenant.
A DHCR inspection conducted on December 31, 1987, revealed that
although the owner was maintaining some services; other services
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were not being maintained. More specifically, the report revealed:
1. Livingroom window has a rotten sill and is difficult to
open.
2. Bedroom window has a rotted sill and will not remain in
the open position.
3. Kitchen cabinets located over stove are separated from
the wall.
4. Defective top oven door.
5. One defective top stove burner.
6. Clogged bathtub water drainage.
7. Cracked livingroom wall.
8. Defective bathroom vent.
9. Kitchen light fixture cover is cracked.
In this petition, the owner states, in substance, that it was not
notified of the inspection report and thus not afforded the
opportunity to repair these defective conditions prior to the
issuance of the Administrator's order. The petitioner cites ARL-
60350-Q wherein a proceeding was remanded to the Administrator on
the basis that an inspection request and report were not served on
the owner prior to the issuance of the Administrator's order to
provide the owner with an opportunity to comment on the inspection
report.
The owner also alleged that most of the repair work was completed
to the tenant's satisfaction and that access was not fully provided
by the tenant to the owner's employees.
The petition was served on the tenant on June 28, 1988.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that the administrative appeal
should be denied.
The tenant's complaint is sufficient notice to the owner of alleged
defective conditions. The owner was made aware of the defective
conditions since the record established that the owner by its
attorney in the proceeding below did answer the tenant's complaint.
Administrative policy and precedent do not require that an owner in
this type of case involving decreased services within an individual
apartment be given a copy of the inspection results, and the Courts
have upheld this procedure (Empress Manor Apartments v. NYSDHCR,
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538 N.Y.S. 2d 49, 147 A.D. 2d 642, February 21, 1989). The
Commissioner notes that the Administrative review opinion referred
to by petitioner concerning a rent control apartment was issued
shortly after the Divisions's takeover of the duties of the Rent
Commissioner, almost ten years ago. It is not and has not been the
Division's practice. In this regard, the Commissioner notes that
an inspection report is the work product of a DHCR staff member who
conducts an on-site inspection to determine questions of fact which
arise after joinder of issue in a proceeding alleging decreased
services. The inspector's work product is an impartial report or
finding, and is not a pleading or a probative submission by a party
to a proceeding which if not served for response would be a fatal
defect in denying due process.
Moreover, the owner had almost five (5) months from service of the
tenant's complaint until the issuance of the Administrator's order
to investigate the tenant's complaint and to make necessary
repairs, but the owner failed to do so.
Additionally, the Commissioner has considered the owner's argument
that access to the subject apartment was denied and rejects this
argument. The file shows clearly that the owner's employees gained
access to the subject apartment on several prior occasions and
completed sundry repairs in a workmanlike manner.
Accordingly, the owner was not denied due process and the
Administrator's order based on the inspection was correct.
The automatic stay of the retroactive rent abatement that resulted
by the filing of this petition is vacated upon issuance of this
order and opinion.
The Division's records reveal that the owner's rent restoration
application was granted on February 6, 1992. (FE210159OR).
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, 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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