CJ110106RO
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.:
CJ110106RO
KANSAS LEASING CORP.,
RENT ADMINISTRATOR'S
DOCKET NO.:
PETITIONER BI110734S
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioner-owner filed a timely petition for admin-
istrative review (PAR) of an order issued concerning the housing
accommodation known as 134-20 87th Avenue, Apartment 6-D,
Kew Gardens, New York.
The Commissioner has reviewed all of 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 the proceeding below by filing a complaint on
September 8, 1987, asserting that the owner had failed to maintain
certain services in the subject apartment, including peeling paint
and plaster in two bedrooms and water seepage from the windows in
the bedrooms. Notice of the complaint was sent to the owner on
December 16, 1987.
In an answer dated December 31, 1987, the owner stated that she had
not received a copy of the complaint from either the tenant or
DHCR. The complaint and answer forms were sent to the owner again
on March 8, 1988.
Thereafter, inspections of the subject apartment were conducted on
April 27, 1988 and August 3, 1988, by a Division of Housing and
Community Renewal (DHCR) inspector who confirmed the existence of
the following defective conditions:
1. Master bedroom and second bedroom ceiling and
walls have peeling paint and plaster.
2. Windows in both bedrooms show evidence of
water seepage.
CJ110106RO
The Rent Administrator directed restoration of these services and
further ordered a reduction of the stabilization rent.
In its petition for administrative review, the owner states, in
substance, that the Administrator did not consider the owner's
answer dated August 5, 1988, that the defects would be corrected on
September 16, 1988, a date that the tenant chose to give access and
therefore, the inspection should not have been conducted until
after the work was completed.
The DHCR served a copy of the petition on the tenant on December 2,
1988.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
The Administrator's order was properly based on the on site
inspections on April 27, 1988 and August 8, 1988 which confirmed
that the master bedroom and second bedroom had peeling paint and
plaster and that the windows in those bedrooms showed evidence of
water seepage. Accordingly, the determination was in all respects
proper and is hereby sustained.
Pursuant to Section 2523.4 of the Rent Stabilization Code, DHCR is
required to order the rent reduction, upon application by the
tenant, where it is found that the owner has failed to maintain
required services. The owner's petition does not establish any
basis for modifying or revoking the Administrator's order which
determined that the owner was not maintaining required services
based on a physical inspection confirming the existence of
defective conditions in the subject apartment for which a rent
reduction is warranted.
Since the tenant's complaint was mailed to the owner on March 8,
1988, and an inspection which took place five months later on
August 8, 1988, still revealed the defective condition, it is the
Commissioner's opinion that the owner had ample time to repair the
defective item in the complaint.
The scope of review in administrative appeals is limited to a
review of facts or evidence that were before the Administrator.
Although the owner's response of August 5, 1988, was received by
the Division on August 10, 1988, it was not in the record that was
before the Administrator when the order was issued. The Commis-
sioner finds, however, that since this response was not submitted
CJ110106RO
until five months after the owner was served with the complaint,
the contents of that response need not be considered.
The Division's records reveal that the owner's rent restoration
application was granted on May 26, 1989 (Docket No. CJ110128OR).
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.
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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