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.:
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioner-owner filed a timely Petition for
Administrative Review (PAR) of an order issued concerning the
housing accommodation known as 1122 Avenue N, also known as 1414
East 12th Street, Apartment 1-K, Brooklyn, New York.
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 the proceeding below by filing a complaint on
December 18, 1987, asserting that the owner had failed to maintain
certain services in the subject apartment.
The owner was sent a copy of the tenant's complaint on February 3,
1988, and requested an extension to March 23, 1988, in order to
make all of the necessary repairs.
In an answer, the owner denied the allegations set forth in the
complaint or otherwise asserted that the leaks in the apartment
have been eliminated, that the apartment is due for a painting, but
the tenant advised that he would like to wait until May 1988, to
get it done, and that the windows are fairly new and any problems
regarding them are addressed as part of regular building main-
tenance that is handled by the superintendent.
On September 19, 1988, the tenant answered that the leaks are still
present and the management has stated that exterior waterproofing
has to be done before the painting. The tenant also stated that
the problem with two windows still exists.
Thereafter an inspection of the subject apartment was conducted by
a Division of Housing and Community Renewal (DHCR) inspector on
October 6, 1988, who confirmed the existence of the following
1. Bedroom ceiling and walls are leak damaged,
stained, and peeling paint and plaster.
2. Bathroom wall is peeling paint and plaster.
The Rent Administrator directed restoration of these services and
further ordered a reduction of the maximum rent by $8.00 per month.
In its petition for administrative review, the owner states, in
substance, that the leaks have been repaired and all that remains
to be done is the plastering and painting; however, the tenant was
on vacation for three weeks when the owner attempted by letter
dated October 24, 1985 to schedule an appointment for painting.
The owner enclosed a copy of this letter sent certified to the
tenant and a form dated November 29,. 1988, with the tenant's
signature stating that the apartment has been plastered and painted
to the tenant's satisfaction.
The DHCR served a copy of the petition on the tenant on February
15, 1989. The tenant filed an affirmation of non-compliance on
December 7, 1988, stating that the leaks emanating from the bedroom
ceiling and walls were patched and painted quickly, that the
bathroom was done poorly, and that when the form was signed asking
if the job was done satisfactorily, the paint was still wet. The
tenant states that she is not satisfied with the work done.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
Pursuant to Section 2202.16 of the Rent and Eviction Regulation, a
rent reduction is authorized where there has been a decrease in
essential services which are defined in Section 2200.3 to include
repairs, maintenance, janitorial services, and removal of refuse.
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 essential services based on a physical inspec-
tion confirming the existence of defective conditions in the
subject apartment for which a rent reduction is warranted.
Since the owner responded to the tenant's complaint on February 22,
1988, and asked for an extension until March 23, 1988, and an
inspection of the apartment seven (7) months later on October 6,
1988, still revealed the defective conditions, the owner had ample
time to repair the leak and to schedule an appointment to paint and
The scope of review in administrative appeals is limited to a
review of facts or evidence that were before the Administrator.
The failure of the owner to raise the issue of access to the
tenant's apartment for the painting and plastering, and to submit
substantiating evidence below precludes consideration of the issue
for the first time in this appeal proceeding.
The owner may file a rent restoration application if the facts so
warrant. The rent will not be restored until a rent restoration
application is filed and granted.
THEREFORE, in accordance with the Rent And Eviction Regulations for
New York City, 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,
JOSEPH A. D'AGOSTA