STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NY 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.:
M. James Spitzer, Jr.,
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On August 16, 1988, the above-named petitioner-owner filed a
petition for administrative review (PAR) of an order issued on July
11, 1988, by the Rent Administrator, concerning the housing
accommodation known as 15 Saint Lukes Place, New York, New York,
garden apartment, wherein the Administrator determined that the
owner's application to restore the rent should be partially granted
based upon an inspection held on April 22, 1988. The order
provided that the owner may refile for the balance of the maximum
legal rent plus $13.00, when the closets are painted, repairs to
the bedroom screens are completed, hallway light fixtures are
installed and when extermination services are restored.
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 administrative appeal.
The issue herein is whether the Rent Administrator properly granted
the owner's application in part.
On January 20, 1988, the owner filed an application alleging that
most repairs and services which were the subject of the December
15, 1987, rent reduction order, issued under Docket No. BE420123S,
were restored. The owner stated that other services were not
specified in the tenant's complaint or were not otherwise raised.
The tenant filed an answer to the complaint alleging that the owner
failed to restore all services in a workmanlike manner and failed
to comply with the terms of a Civil Court settlement stipulation,
in which he promised to make all repairs.
A DHCR inspection conducted on April 22, 1988, revealed that the
owner failed to fully restore services in the subject apartment.
The inspection showed, however, that the owner painted the
apartment, fixed the floor boards in the living room and that there
was no hole in the bathroom floor and no defective windows.
On appeal, the petitioner-owner asserted, in pertinent part, that
the Rent Administrator should have granted full rent restoration
because all work was either completed in workmanlike manner or was
in progress. The owner also alleged that the tenant's opposition
to a full rent restoration grant is contrary to the court-ordered
stipulation of settlement filed in Civil Court in October, 1988,
and that the tenant agreed to perform much of the repair work for
The petition was served on the tenant on October 11, 1988 and on
November 4, 1988, the tenant filed an answer to the petition
stating that all repairs were not completed by the owner and that
those repairs that were completed by the tenant were done out of
After a careful consideration of the entire evidence of record the
Commissioner is of the opinion that the administrative appeal
should be denied.
The owner, on proof of restoration of those services which were the
subject of the Rent Administrator's reduction order is, by law,
entitled to apply for an order of restoration.
The Commissioner notes that the stipulation of settlement relied
upon by the petitioner-owner, on appeal, is dated October, 1988 and
it, therefore, post-dates the July 11, 1988, issuance date of the
Accordingly, the Commissioner finds that the Commissioner can not
consider the contents of this stipulation.
The record shows that an earlier Civil Court stipulation was
entered into by the parties, on October 1, 1987, under Index No.
5468/87, which antedates the appealed order and which, in pertinent
part, provided that the owner would perform certain repair-work in
a workmanlike manner.
The DHCR inspection conducted on April 22, 1988, revealed that the
owner failed to fully restore services.
Accordingly, the owner did not comply with the provisions of the
stipulation dated October 1, 1987.
As to the owner's claim on appeal that the tenant agreed to do much
of the repair work, it is fundamental that a rent regulated tenant
can not waive rights under the Rent Control Law and that any
subsequent agreement entered into by the parties in which the
tenant's services are waived is unenforceable. The mere fact that
a tenant might replace certain services with the owner's
permission, does not relieve the owner of the obligation to provide
The Commissioner finds, therefore, that the Rent Administrator
correctly issued the order below which partially granted the
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations for New York City, it is
ORDERED, that this petition be, and the same hereby is, denied, and
the Administrator's order be, and the same hereby is, affirmed.
JOSEPH A. D'AGOSTA