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.: CA430026RO
DOCKET NO.: BB430040B
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely petition for
administrative review of an order issued on December 11, 1987,
concerning the housing accommodations known as 1103 First Avenue,
New York, New York, wherein the Rent Administrator determined that
certain conditions found at the subject premises constituted
building-wide services decreases.
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 tenants commenced this proceeding on February 9, 1987 by
filing a complaint asserting that the owner had failed to maintain
certain services at the subject premises.
A file copy of the notice and transmittal of the tenants'
complaint, and notes in the Examiner's progress sheet, reflect that
the tenants' complaint, with answer forms, was served on the owner
on February 27, 1987.
In an answer dated April 10, 1987, the owner, by its
attorneys, requested the first of several extensions of time in
which to answer, stating that the owner was "...awaiting compliance
with an application for public access to records filed with the
DHCR on this matter in order to draft a complete answer to the
tenants' complaint...." Similar requests for extensions were
received on July 9, October 1, and December 2, 1987.
By a letter dated December 11, 1987, the Rent Administrator
advised the owner's attorneys that the December 2 request for an
extension of time was denied and not warranted, and that a
determination would be made based on the evidence of record.
A Rent Administrator's order was issued on the same day, based
on an inspection that had been conducted on April 1987, which
confirmed the tenants' complaints of defective intercoms, public
areas in need of cleaning, and an inadequate number of garbage
cans. The Administrator directed restoration of these services,
and further, ordered a reduction of the regulated rents.
In the petition for administrative review, the owner asserts,
for the first time, that the owner was unable to file an answer
because it was never served a copy of the complaint, that the
Administrator's order constitutes the first notice of specific
defects, and that the issuance of the order without first providing
the owner an opportunity to respond to the tenants' allegations
was, therefore, a violation of the owner's right to due process.
The tenants were served copies of the owner's petition.
After careful consideration, the Commissioner is of the
opinion that the petition should be denied.
Pursuant to Section 2523.4 of the Rent Stabilization Code,
DHCR is required to order a rent reduction, upon application by a
tenant, where it is found that an owner has failed to maintain
required services. Section 2202.16 of the Rent and Eviction
Regulations contains similar provisions.
The record reveals that the complaint was properly served on
the owner, and that shortly thereafter, the owner's representative
responded to request the first of several extensions of time to
respond, as it was awaiting the DHCR compliance with the owner's
application to review the case docket.
However, the owner never indicated in any of the extension
requests, nor in the application to review the file, that the owner
never received the complaint, Nor did the owner request a copy of
The issue of lack of due process is raised for the first time
on appeal. However, the owner's petition fails to establish the
owner's claim of lack of due process. There is, therefore, no
basis for modifying or revoking the Administrator's order, which
determined that the owner was not maintaining services, based on a
physical inspection confirming the existence of defective
conditions in the subject premises, for which the rent reductions
DHCR records also show that the Rent Administrator issued an
order on September 2, 1988 that granted the owner's rent
restoration application per DRO Docket No. CA430205OR.
The automatic stay of the retroactive rent abatement that
resulted in the filing of the petition is vacated upon the issuance
of this order and opinion.
THEREFORE, in accordance with the Rent Stabilization Law and
Code and the City Rent and Eviction Regulations, 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.
Joseph A. D'Agosta