DOCKET NO.: CH 710145-RT
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. CH 710145-RT
: DISTRICT ADMINISTRATOR'S
AGATHA C. MANGI, DOCKET NO. MCD 710010-S
: PREMISES: 101 JACKSON AVE., #1A
PETITIONER MINEOLA, NY
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ORDER AND OPINION REMANDING PROCEEDING TO THE RENT ADMINISTRATOR
The above-named tenant filed a timely petition for administrative review
of an order issued concerning the housing accommodations described
above.
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 tenant commenced this proceeding by filing a complaint asserting
that the owner had failed to maintain certain services in the subject
premises, specifically that owner refused to repair an air conditioner
in the subject apartment.
In its answer, the owner stated that it was not required to make such
repairs. It included a copy of the lease as evidence. The owner also
included with its answer a copy of the 1984 Registration Statement; said
statement stating on its face that the air conditioner was to be
maintained by the tenant.
In response the tenant agreed, in substance, that the air conditioner
had been in her apartment when first rented and had been in working
order. Therefore, the lease clause not withstanding, the owner must
continue to supply the base date service of a working air conditioner.
The Rent Administrator denied the tenant's complaint, relying in its
finding on the lease, and also on the fact that the tenant in the
proceeding below had not challenged the 1984 Registration Statement.
On appeal, the tenant contends that the Administrator's findings
conflict with "Rent Stabilization Law." Specifically the tenant argues
that the lease clause conflicts with the requirements of the Emergency
Tenant Protection Act.
In answer to this petition the owner contends the petition is untimely
since the tenant did not serve the owner with a copy of the petition.
DOCKET NO.: CH 710145-RT
On the substantive level the owner argues that due to the lease's clause
and the tenant failure to object to the owner's registration of
services the owner has no obligation to maintain the air conditioner.
The Commissioner is of the opinion that this proceeding should be
remanded to the Rent Administrator.
While the Emergency Tenant Protection Act does require a tenant to
challenge the initial registered rent within 90 days, no such limit
exists for challenging an owner's registration of service. More
importantly, although it is undisputed that the complaining tenant's
initial lease has a clause requiring the tenant to maintain the air
conditioner, such clause would be invalid if the owner was maintaining,
or was required to maintain, the air conditioner on the base date.
Since the record before the Commissioner is inadequate to determine this
issue, this matter should be remanded. At the outset, the Commissioner
notes that since 1987 the Division has adapted the uniform policy of
serving the petition on the opposing parties. Indeed, the form,
properly used by the tenant (amended November 1987) instructs the
petitioner to merely file two copies of the petition with the Division
and does not require the service of the petition on any party.
THEREFORE, in accordance with the provisions of the Tenant Protection
Regulations, it is
ORDERED, that this petition be, and the same hereby is, granted to the
extent of remanding this proceeding to the Rent Administrator for
further processing in accordance with this order and opinion. The order
and determination of the Rent Administrator remains in full force and
effect until a new order is issued upon remand.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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