CF610185RO
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
APPEAL OF DOCKET NO.: CF610185RO
CHARLES WAXMAN RENT ADMINISTRATOR'S
DOCKET NO.: BJ610143OR
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely petition for administrative
review of an order issued on May 19, 1988 concerning the housing
accommodations known as 16 Elliot Place, Apartment 2D, Bronx, New
York, wherein the Rent Administrator denied the owner's application
to restore rent previously reduced per Docket No. BB610698S.
The Commissioner had 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 the proceeding by filing a rent restoration
application asserting that a majority of the service reductions
that gave rise to the rent reduction had been restored to the
subject premises. The owner acknowledged, however, that fire
escapes had not been painted.
In addition, the owner reiterated below the claim raised in the
administrative appeal of the underlying rent reduction order that
a bell and buzzer system was not a base date service. The
Commissioner dismissed the owner's bare allegation therein on the
ground that it was beyond the scope of review.
Thereafter, an inspection of the subject premises was conducted by
a DHCR inspector who reported that there was no evidence of a bell
and buzzer system, that the lobby bannister was missing and that
fire escapes to the right and left of the entrance of the building
were rusted and peeling paint. The other conditions that had given
rise to the rent reduction were found to have been corrected.
Therefore, the Rent Administrator denied the owner's request for
rent restoration.
CF610185RO
In the petition for administrative review, the owner reiterated his
claim that a bell and buzzer system was not a base date service,
asserted that the bannister had been replaced and stated that he
had contracted to have the fire escapes painted.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
Pursuant to Section 2523.4 of the Rent Stabilization Law and Code,
the DHCR is required to order a rent reduction, upon application by
a tenant, if there has been a decrease in one or more required
services. The tenant's rent may be restored only if the conditions
have been corrected.
The owner's statement that he contracted to have the fire escapes
painted suggests that the condition had not been corrected when the
owner filed this administrative appeal.
Concerning the bell and buzzer system, the Commissioner notes that
rent restoration proceedings are limited to a determination of
whether the owner has corrected conditions previously found to have
been defective. The owner failed to seek judicial review of the
administrative appeal confirming the Rent Administrator's
determination that a bell and buzzer system was a base date
service. The owner's attempt in these rent restoration
proceedings, below and on appeal, to reverse that finding,
constitutes an impermissible collateral attack of a final
determination.
The Commissioner further notes that, in an order per Docket No.
FK611054OR dated July 27, 1993, the Rent Administrator determined
that bell and buzzer system services had been restored, albeit the
Administrator denied the owner's rent restoration application on
other grounds.
THEREFORE, in accordance with the Rent Stabilization Law and Code
and the Emergency Tenant Protection Act of 1974, 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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