CI130208RO; FJ110425RT
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
APPEALS OF DOCKET NOS.:
CI130208RO; FJ110425RT
KINGSWOOD MANAGEMENT CORP.,
and
CHARLES S. FOWLER, RENT ADMINISTRATOR'S
DOCKET NOS.:
PETITIONERS CC110029OR; EI130172OR
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
On September 29, 1988 and October 29, 1991, the above-named
petitioner-owner and tenant respectively filed petitions for
administrative review (PAR) of orders issued on August 23, 1988 and
September 24, 1991, by the Rent Administrator, concerning the
housing accommodations known as 144-22 78th Avenue, Flushing,
New York, various apartments, wherein the Rent Administrator
determined in Docket No. CC110029OR, that the owner's application
for rent restoration should be denied based on evidence in the
record that showed that not all of those services which were the
subject of the rent reduction order of October 14, 1987, under
Docket No. BB130115B, had been restored. With regard to Docket No.
EI130172OR, the Rent Administrator determined that the owner's
second application for rent restoration should be granted, based on
the following findings:
Physical inspection held on May 1, 1991, revealed that
the repairs were made. However, the inspector revealed
that public hallway carpeting was dirty.
Owner was notified on May 6, 1991 of same and afforded an
opportunity to correct the condition. Subsequently the
owner submitted an invoice to indicate that the public
hallway carpeting was cleaned.
The Commissioner has reviewed all the evidence in the record and
has carefully considered that portion of the record relevant to the
issue raised by the administrative appeals.
CI130208RO; FJ110425RT
The issue herein is whether the Rent Administrator properly denied
the owner's application for rent restoration in Docket No.
CC110029OR and granted the owner's second application for rent
restoration in Docket No. EI130172OR.
On August 23, 1988, the owner filed an application for rent
restoration alleging that the services which were the subject of
the Administrator's rent reduction order of October 14, 1987, under
Docket No. BB130115B were fully restored. After the Administrator
denied this application, the owner filed a second rent restoration
application alleging full restoration of services.
With regard to Docket No. CC110029OR, the tenants filed an answer
to the application alleging that the owner failed to correct those
service deficiencies specified in the rent reduction order of
October 14, 1987.
With regard to Docket No. EI130172OR, the tenants essentially
reiterated their allegations contained in their initial answer to
the first application.
Pertaining to Docket No. CC110029OR, a Division of Housing and
Community Renewal (DHCR) inspection conducted on July 18, 1988,
revealed that the public hallway walls and carpeting required
cleaning. The DHCR conducted an inspection, under Docket No.
EI130172OR on May 1, 1991, which revealed that all repairs were
made with the exception of public hallway carpeting which was found
to be dirty. However, a follow-up inspection held on July 23,
1991, determined that the service was restored and the carpet was
clean.
On appeal, the petitioner-owner asserted, in Docket No. CI130208RO,
in pertinent part, that dirty public hallway walls and carpeting
are conditions which are considered ordinary maintenance; that
these same conditions were minor in nature and not worthy of a rent
reduction in the first place and that the Rent Administrator erred
by failing to give it notice of the inspection.
On appeal, the petitioner-tenant asserted, in Docket No. FJ110425RT
pertinent part, that any repairs made by the owner were completed
in an unworkmanlike manner and were not up to professional stand-
ards.
CI130208RO; FJ110425RT
With regard to Docket No. CI130208RO, the petition was served on
the tenant on November 21, 1988, and on December 4, 1988, the
tenants filed an answer to the petition stating that the hallway
wallpaper is still ripped and both the walls and the rugs are
filthy. With regard to Docket No. FJ110425RT, the petition was
served on the owner on December 9, 1991, and the owner filed an
answer to the petition stating that all services which were the
subject of the Administrator's rent reduction order of October 14,
1987, have been restored.
After a careful consideration of the entire evidence of record, the
Commissioner is of the opinion that the administrative appeals
should be denied.
With regard to Docket No. CI130208RO, the Commissioner notes that
although the owner has characterized the cited condition as normal
maintenance and something which is "promptly attended to", the
record reveals that "normal maintenance" did not, in this case,
include prompt attention to the cited condition from the date of
the inspection held in the reduction proceeding under Docket No.
BB130115B prior to October 14, 1987 and the date of the inspection
held in this proceeding on July 18, 1988. The inspections were
conducted more than nine months apart. In the opinion of the
Commissioner, an item of normal maintenance would have been cor-
rected within this time span and, if corrected properly, would not
have reappeared. The Commissioner further notes that the peti-
tioner's contention that the rent should not have been reduced is
in the nature of a challenge to the rent reduction order which
became a final order not subject to further review when an appeal
was not filed within the prescribed time period.
The Commissioner notes that dirty public hallway walls and
carpeting are not minor items that occur normally despite ongoing
maintenance and that they qualify for rent reduction when shown by
credible evidence.
The Commissioner has considered and rejects the petitioner's
contention that its right of due process was violated by the Rent
Administrator's failure to notify it of the date and results of the
inspection.
Due process does not require that an owner who has been served with
a complaint be given notice of the inspection or the actual
inspection results and the courts have upheld this procedure
(Empress Manor Apartments v. NYS DHCR, 538 N.Y.S. 2d 49, 147 A.D.
2d 642, February 21, 1989).
With regard to Docket No FJ110425RT, the only issue raised by the
tenant is whether the DHCR inspector properly issued the findings
contained in his report.
The record, however, is absent any credible evidence which would
contradict the inspector's findings that the owner was properly
maintaining the public hallway walls and carpeting.
Accordingly, the Commissioner finds that in Docket No. CC110029OR,
the Administrator properly determined that the owner had failed to
restore all services based on the evidence of the record, including
the results of the on-site inspection of the subject premises and
correctly denied the owner's rent restoration application. Addi-
tionally, the Commissioner finds that in Docket No. EI130172OR, the
Administrator properly relied on the two inspections to grant the
owner's application for rent restoration to the level in effect
prior to the rent reduction plus subsequent lawful increases.
THEREFORE, in accordance with the provisions of the Rent Stabiliza-
tion Law and Code, it is
ORDERED, that these petitions be, and the same hereby are, denied,
and that the Administrator's orders be, and the same hereby are,
affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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