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.: CB110141RO
JACOB KEMPLER, DISTRICT RENT
ADMINISTRATOR'S
DOCKET NO.: BE110063S
PREMISES:
88-14 161st St.
Apt.2L
JAMAICA, NY
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 December 8, 1987 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 the petition.
The issue in this appeal is whether the Administrator's order was
correct.
This proceeding was commenced on May 5, 1987 by the tenant filing a
complaint asserting that the owner had failed to maintain various
services in the subject apartment.
On May 21, 1987, DHCR transmitted a copy of the tenant's complaint
to the owner.
In its answer filed on June 2, 1987, the owner asserted that he
"proceeded with immediate action to repair all necessary items."
Thereafter, an on-site inspection of the subject apartment was
conducted on October 30, 1987 by a DHCR staff member who found that
there are large holes in the bathroom ceiling and wall area due to
water seepage and leakage, allowing vermin entry to the apartment;
that there is an odor from the water seepage in the plumbing; and
that there is roach and rodent infestation throughout the apartment,
coming from the holes in the walls and baseboard areas.
CB110141RO
In an order issued on December 8, 1987, the Administrator directed
the restoration of services and further ordered the reduction of the
stabilized rent.
In the petition for administrative review, the owner contends that
a plumber has repaired the leak, that the ceiling has been painted,
that the tenant's lack of cleanliness caused the odor, and that the
exterminating company has advised that the tenant's lack of
cleanliness was responsible for the vermin infestation.
On March 17, 1988, DHCR mailed a copy of the petition to the tenant.
In an answer dated March 26, 1988, the tenant stated that no plumber
came to the apartment and no one has painted the ceiling, that the
foul odor still exists despite her constant cleaning and
deodorizing, that mice are coming into her home due to the hole in
the bathroom wall, and that the exterminating company never came
into her home.
After careful consideration, the Commissioner is of the opinion that
the petition should be denied.
Despite the owner's contention of repairs, the Administrator's
determination was based on a DHCR inspector's on-site finding of
defective conditions within the apartment. Accordingly, the
determination was in all respects proper and is hereby sustained.
The owner's allegations in the petition that the tenant was
responsible for the plumbing odor and the vermin infestation were
not raised in the proceeding below prior to the issuance and are now
raised for the first time on appeal. Accordingly, these assertions
are beyond the scope of administrative review which is limited to
the issues and evidence before the Administrator.
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 Administrator's order be, and the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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