CH110092RO
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.: CH110092RO
RICHARD ALBERT RENT
ADMINISTRATOR'S DOCKET
NO.: BG110862S
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 15, 1988 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued on July 13, 1988 concerning the housing
accommodations known as Apt. 2M, 94-07 222nd Street, Queens
Village, NY, wherein the Administrator determined that the owner
was not providing certain required services, directed restoration
of such services, and ordered a rent reduction.
The Commissioner has carefully reviewed all the evidence of record
and has carefully considered that portion relevant to the issues
raised on appeal.
The record indicates that the tenant filed a complaint on July 24,
1987 alleging that the owner was not maintaining certain services.
In answer to the complaint, the owner stated that all services are
being provided and that it had been determined in another
proceeding that extermination service is available to any tenant
who requests it.
A physical inspection by DHCR on March 7, 1988 revealed that there
were gaps between the floors and walls throughout the apartment
which permit rodent access, window screens throughout the apartment
were defective, and the screen in the master bedroom was missing.
Based on this inspection, the Rent Administrator issued the order
appealed herein, reducing the legal regulated rent to the level in
effect prior to the most recent guidelines adjustment.
In the petition for administrative review, the owner asserts that
the rent cannot be reduced for gaps between the walls and floors
because these gaps existed on the base date that it was determined
in another proceeding that the owner provides exterminating
CH110092RO
service, that screens are the tenant's responsibility, and that a
hearing was required before the issuance of the subject order.
The petition was served on the tenant on October 6, 1988.
In answer to the petition, the tenant advises that he has vacated
the apartment but urges that the petition be denied because it is
without merit.
After careful consideration of the evidence of record, the
Commissioner is of the opinion that the petition should be denied.
Section 2523.4 of the Rent Stabilization Code requires DHCR to
order a rent reduction, upon application by a tenant, where it is
found that an owner has failed to maintain required services.
Required services are defined in Section 2520.6(r) as that space
and those services provided on the base date including repairs and
maintenance and exterminating services. The order appealed herein
properly reflects the results of the physical inspection which
found that required services were not being maintained.
The owner's petition does not establish any basis for modifying or
revoking the Rent Administrator's order. The tenant complained of
rodent infestation because of the owner's failure to plug up holes
between the floors and walls that permit mice to enter the
apartment. In order to address this situation, which was confirmed
by the inspection, the owner was required to close the gaps between
the walls and floors. It is not a valid defense to assert that the
defective conditions noted by the inspector have existed since the
base date. Rodent infestation cannot be excused on the basis that
the conditions permitting the infestation have always existed.
The other proceeding the owner relies on for the determination that
extermination services are available is not dispositive because the
tenant herein was not a party to that proceeding. Moreover,
exterminating services must be provided on an ongoing basis and may
deteriorate at any time so that the finding in one case that such
service is available does not preclude a finding in another case
that such service is not available or is not effective.
With regard to screens, the owner's allegation that this is the
tenant's responsibility was not raised below and is, therefore,
beyond the scope of review of this appeal which is limited to a
review of the facts and evidence that was before the Administrator.
Finally, there is no requirement in the applicable law or
regulations that a hearing is required before a rent reduction
order may be issued.
The Division's records reveal that the owner's rent restoration
application was granted. (Docket No. CH110077OR)
CH110092RO
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,
it is
ORDERED that this petition be and the same hereby is denied and the
Rent Administrator's order be and the same hereby is affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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