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.: CK210164RO
Jake La Manna,
DOCKET NO.: CB210103OR
ORDER AND OPINION GRANTING PETITION FOR
ADMINISTRATIVE REVIEW IN PART
On November 30, 1988, the above-named petitioner-owner filed a
petition for administrative review (PAR) of an order issued on
November 7, 1988, by the Rent Administrator, concerning the housing
accommodation known as 160 Ocean Parkway, Apt. 4-C, Brooklyn,
New York, wherein the Administrator denied the owner's application
for rent restoration, based upon an inspection of the premises, on
September 22, 1988, which disclosed that the owner failed to
restore all services specified in the rent reduction order of
November 26, 1986, under Docket No. AE210400S. The rent had been
reduced for peeling paint and plaster throughout the apartment and
defective windows with cracked panes and warped and broken sashes
in all rooms except the living room.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issue raised by the administrative appeal.
The issue herein is whether the Rent Administrator properly denied
the owner's application for rent restoration based upon a finding
that services were not fully restored.
On February 9, 1988, the owner filed an application for rent
restoration, alleging that all service deficiencies noted in the
Rent Administrator's rent reduction order of November 26, 1986, had
The application included a signed statement by the tenant
confirming the restoration of services and consenting to the rent
increase. The owner also included copies of receipts for
plastering and painting the apartment and for the installation of
The tenant filed an answer to the application on April 3, 1988,
stating that most services had been restored but the window sashes
were still warped and that although the owner promised to repair
the sashes, the windows were still in bad shape.
A DHCR inspection conducted on September 22, 1988, revealed that:
1. Kitchen bottom window sash does not stay open.
2. Both master bedroom windows are warped, but there was no
evidence of cracked panes.
On appeal, the petitioner-owner asserted, in pertinent part, that
the DHCR inspection occurred approximately one (1) year after the
tenant signed a consent form indicating that all work was performed
to his satisfaction and that the deficiencies found by the
inspector are ordinary maintenance, minor in nature and not rent-
The petition was served on the tenant on January 24, 1989, and on
January 28, 1989, the tenant filed an answer to the petition
stating that the promised repairs were not made by the owner and
that the only reason he signed the consent form on the owner's rent
restoration application in advance was because of his friendship
with the owner's attorney.
After a careful consideration of the entire evidence of record the
Commissioner is of the opinion that the administrative appeal
should be granted, in part.
A review of the file indicates that the tenant's answer to the
application dated April 3, 1988 was not served on the owner.
The Commissioner notes that a remand to the Rent Administrator for
the purpose of serving the tenant's answer on the owner to afford
him an opportunity to reply would be nugatory at this point in
time, because the owner subsequently filed another rent restoration
application which was granted based on the tenant's failure to
grant access to the inspector and the rent was restored effective
January 1, 1989 (CL210056OR).
Upon the facts found herein, the Commissioner finds that the owner
had been deprived of its right to due process insofar as it was not
notified of the tenant's answer in which withdrawal of consent to
the rent restoration was expressed.
Had the tenant not repudiated the consent, there would have been no
need for the Division to send an inspector. Based on equitable
considerations, as permitted by Section 2522.7 of the Rent
Stabilization Code, the Commissioner deems it appropriate to grant
rent restoration, effective October 1, 1988, the first of the month
following the physical inspection by the Division which confirmed
that the window sashes had not been fixed and which is the earliest
date that the owner could have effectuated the necessary repairs.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
ORDERED, that this petition be, and the same hereby is, granted in
part and that the Rent Administrator's order be, and the same
hereby is revoked, and the rent be and the same hereby is restored
to the level in effect prior to the rent reduction plus subsequent
lawful increases, effective October 1, 1988.
JOSEPH A. D'AGOSTA