CE210167RO
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.: CE210167RO
K.M.W. REALTY CO RENT
ADMINISTRATOR'S DOCKET
NO.: BK230095HW
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On May 4, 1988 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued April 5, 1988. The order concerned various
housing accommodations located at 1770 East 14th Street, Brooklyn,
N.Y. The Administrator directed restoration of services and
ordered a rent reduction for failure to maintain adequate heat and
hot water.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
This proceeding was commenced on November 17, 1987 when 43 of
the 76 tenants joined in filing a Statement of Complaint of
Decrease in Building-Wide Services wherein they alleged, in
relevant part, that the owner was not maintaining adequate heat and
hot water services.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on December
8, 1987 and stated, in sum, that adequate heat and hot water was
being maintained.
The Administrator ordered a physical inspection of the subject
building. The inspection was conducted on February 23, 1988 and
March 14, 1988. The inspector reported inadequate hot water
temperature in Apts. 4F, 5E and 6H. The hot water temperature was
found to be adequate in the following apartments: 2B, 2C, 2D, 2J,
2F, 3M, 3C, 3D, 4C, 5C, 5B, 6G, 6J, 6C, 6D, 7J, 7G, and 7M.
Finally, the inspector reported that the tenants of the following
apartments failed to provide access: 1G, 2L, 2K, 2H, 2M, 3F, 3J,
4D, 4E, 4K, 5H, 5G, 5M, 5D, 5L, 5F, 5A, 6M, 6E, 7A, 7E, and 7F.
CE210167RO
The Administrator issued three orders on April 5, 1988. A
rent reduction was ordered for the three tenants in whose
apartments the inspector reported a failure to maintain adequate
hot water temperature. The application was denied for all other
apartments listed above either because the hot water temperature
was reported to be adequate or because the tenants had not afforded
access to the inspector.
On appeal the owner, as represented by counsel, states that
the tenants filed a duplicate complaint, which was assigned Docket
No. BK210077HW and dismissed by the Administrator on February 25,
1988, and that two of the tenants who were granted a rent reduction
in the order here under review filed statements in Docket No.
BK210077HW wherein they withdrew their complaints and stated that
they were receiving adequate hot water. The owner submitted with
the petition copies of such statement. The owner also states that
it is impossible that some tenants were found to have inadequate
hot water while others in the same building and serviced by the
same boiler were found to have adequate hot water. The petition
was served on the tenants on July 8, 1988.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
The Commissioner's review of the record in this proceeding as
well as the record in Docket No. BK210077HW does not reveal the
existence of the signed statements provided by the owner in the
petition. In fact, the owner's answers in both proceedings postdate
the purported withdrawals but were not mentioned by the owner. The
Commissioner has consistently ruled that the scope of review in
administrative appeals is limited to facts or evidence submitted to
the Administrator unless it can be shown that such facts or
evidence could not be submitted. Since the records of both this
proceeding and Docket No. BK210077HW do not contain copies of the
tenants' statements and the owner has not established that such
statements were submitted to the Division, the Commissioner will
not consider this evidence on appeal.
The Commissioner also rejects the owner's defense to the
effect that it was impossible for only some of the building
apartments to be without adequate hot water when all apartments are
serviced by the same boiler. The inspector did not report a
problem with the boiler, but rather, a problem with the hot water
service as it affects the three apartments. The kitchen hot water
temperature of Apt. 4F was reported to be 100 degrees, the kitchen
and bathroom hot water temperatures of Apt. 5E were also reported
to be 100 degrees and the bathroom hot water temperature was
reported to be 84 degrees. The owner has not rebutted the
inspector's report, which is entitled to more probative weight than
the unsupported allegations of a party to the proceeding. The
order here under review was correctly issued and is affirmed.
CE210167RO
With regard to rent stabilized tenants affected by the order
here under review, 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 owner may
file for rent restoration when services have been restored.
THEREFORE, pursuant to the Rent Stabilization Law and Code and
Rent and Eviction Regulations 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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