CH210247RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NY 11433
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: CH210247RO
50 East 19th Street Associates,
RENT ADMINISTRATOR'S
DOCKET NO.: BK210205S
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named petitioner-owner filed a timely petition for
administrative review of an order issued concerning the housing
accommodation known as 50 East 19 Street, Apt. A2, Brooklyn, N.Y.
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 14, 1987, asserting that the owner had failed to maintain
certain services in the subject apartment.
The owner did not answer the complaint, although afforded an
opportunity to do so.
Thereafter an inspection of the subject apartment was conducted by
a DHCR inspector on May 26, 1988, who confirmed the existence of
the following defective conditions:
1. Three stove burners were defective; oven can't be regulated.
2. Hole under the kitchen sink.
3. Evidence of water leak around kitchen sink.
4. Bathroom floor has been repaired; tiles are of a different
color.
5. Bathroom sink hot water faucet drips.
6. Hallway switch defective.
7. Peephole in need of adjustment.
8. Bedroom closet has a leak; walls are water-stained.
9. Living room left window doesn't lock; living room right window
sash doesn't stay open.
CH210247RO
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 Enforcement Bureau outlined the repairs to be
made to the tenant's apartment and most of them were done if access
was not an issue. The owner also stated that, the tenant refused
the replacement stove because it was not new, the bathroom floor
tiles were replaced with tiles that were not the same color because
the color is no longer available and the tenant agreed to the use
of those tiles, the sink was made operable, the leak is new, and
the peephole was replaced, but an adjustment is needed. The owner
further states that a good portion of the work was done and the
Enforcement Bureau felt comfortable enough to close the case. The
owner claims that access to complete the remaining repairs was not
given and that it is unfair to reduce the rent for these conditions
or for any that were not included in the directives by the
Enforcement Bureau.
The DHCR served a copy of the petition on the tenant on October 17,
1988. The tenant replied that the owner agreed during a conference
that he would replace the old flooring in the bathroom with a new
one, fix the peephole, and fix the kitchen sink and floor, but all
items were not repaired and the owner then claimed that he could
not gain access. The tenant further states that an agreement was
made that access would be Monday through Friday between the hours
of 9 to 5 p.m. only and that she should be informed in advance of
repair dates. She further states that the problems in her
apartment date back to 1985 and are far from being completed and
that is why the owner's petition should be denied.
The Administrator's order was properly based on a May 26, 1988 on-
site inspection which confirmed that there are defective conditions
in the apartment. Accordingly, the determination was in all
respects proper and is hereby sustained.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
Pursuant to Section 2523.4 of the Rent Stabilization Code, DHCR is
required to order a rent reduction, upon application by a tenant,
where it is found that an 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 condi-
tions in the subject apartment for which a rent reduction is
warranted.
The scope of review in administrative appeals is limited to a
review of facts or evidence that were before the Administrator.
CH210247RO
The failure of the owner to answer the complaint precludes
consideration of the issues for the first time in this appeal
proceeding.
The Commissioner has also considered the owner's contention on
appeal that since the Enforcement Bureau closed the case and that
a good portion of the work was done, the rent reduction order
should be revoked. The Commissioner rejects this argument.
Diminution in services is a separate proceeding from an enforcement
proceeding with different standards and procedures. A copy of the
tenant's complaint seeking a rent reduction for failure to maintain
services was mailed to the owner, giving the owner notice of the
conditions requiring repair and the owner failed to respond.
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.
The automatic stay of the retroactive rent abatement that resulted
by the filing of this petition is vacated upon issuance of the
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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