CL110167RO
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
----------------------------------x
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: CL110167RO
RICHARD ALBERT RENT
ADMINISTRATOR'S DOCKET
NO.: BL110745S
PETITIONER
----------------------------------x
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On December 15, 1988 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued November 17, 1988. The order concerned housing
accommodations known as Apt. 3R located at 93-47 222nd Street,
Queens Village, N.Y. The Administrator directed restoration of
services and ordered a rent reduction for failure to maintain
required services.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The tenant commenced this proceeding on April 19, 1988 by
filing nine separate Statement of Complaint of Decrease in Services
wherein she alleged that the owner was not maintaining certain
required services including uneven and sagging floors, kitchen
cabinet doors not closing properly, detached freezer door, water
damaged windows and frames, roach infestation and peeling paint and
plaster.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on June 10,
1988 and stated, in sum, that all required services are being
maintained and that no rent reduction was justified.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on September 29, 1988 and
revealed the following:
1. Defective hallway and second bedroom floor,
2. Defective kitchen cabinet door does not remain
CL110167RO
closed when shut,
3. Freezer door is off hinge,
4. Rotted and water stained living room window frame,
5. Water stained windows throughout,
6. Vermin infestation,
7. Hallway ceiling is peeling paint,
8. Master bedroom wall is cracked and the ceiling is
peeling paint,
9. Second bedroom ceiling is cracked, peeling paint
and may be in hazardous condition.
The Administrator issued the order here under review on
November 17, 1988 and ordered a rent reduction based on the
inspector's report.
On appeal the owner states, in sum, that the tenant has been
uncooperative in allowing access to the apartment, that
extermination services are provided on a monthly basis, that at a
hearing held in connection with another proceeding the agency
determined that there is in fact monthly extermination services,
that the finding in this proceeding regarding infestation is
inconsistent with said determination, that a professional
exterminator retained by the owner as well as the building
superintendent found no evidence of infestation in the subject
apartment, that the tenant caused the problem with the freezer door
and the peeling paint and plaster, that the conditions regarding
the freezer door and peeling paint and plaster are too minor to
warrant a rent reduction and that the tenant is engaged in a course
of conduct to harass the owner. The petition was served on the
tenant on January 30, 1989.
The tenant filed a response on February 10, 1989 and stated,
in sum, that the owner's petition was unsubstantiated, that the
order here under review was correctly issued and that the petition
should be denied.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
Pursuant to Section 2523.4 of the Rent Stabilization Code a
tenant may apply to the DHCR for a rent reduction based on the
owner's alleged failure to maintain services and the Administrator
shall reduce the rent upon finding that said services have, in
fact, been reduced. The definition of required services includes
CL110167RO
repairs and maintenance. The Commissioner finds that the
Administrator based this determination on the entire record
including the results of the on-site physical inspection described
above.
The Commissioner is aware that many proceedings have been
filed by the tenants of this building and that there have been
court proceedings between the owner and tenants with regard to the
issue of maintenance of services. However, the owner has failed to
rebut the inspector's report. With regard to the owner's argument
regarding extermination services, the fact that this agency, in
another proceeding, found that extermination is provided on a
monthly basis does not contradict the report of the inspector. The
Commissioner notes that extermination, if performed, has been
ineffective and such was evident at the time of inspection.
With regard to the owner's claim that the tenant was
uncooperative in allowing access to the apartment, the Commissioner
notes that the scope of review in an administrative appeal is
limited to facts or evidence presented to the Administrator unless
it can be shown that such facts or evidence could not be presented.
Since the owner did not raise the access issue before the
Administrator the Commissioner will not consider this argument on
appeal. The owner's other contentions are unsubstantiated or
without merit. The order here under review is affirmed.
The automatic stay of the retroactive rent abatement which
resulted from the filing of this petition is vacated upon issuance
of this order and opinion.
The Commissioner notes that the owner's application for rent
restoration (Docket No. HD110182OR) is pending before the DHCR).
THEREFORE, pursuant to the Rent Stabilization Law and Code 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
|
