CL110164RO
                                  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




          ----------------------------------x
          IN THE MATTER OF THE ADMINISTRATIVE          ADMINISTRATIVE REVIEW
          APPEAL OF                                    DOCKET NO.:
                                                       CL110164RO
                    RICHARD ALBERT,
                                                       RENT ADMINISTRATOR'S
                                                       DOCKET NO.:
                                                       BL110742S
                                   PETITIONER                            
          ----------------------------------x     


            ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
                     IN PART AND MODIFYING ADMINISTRATOR'S ORDER


          On December 1, 1988, the above-named petitioner-owner filed a Peti- 
          tion for Administrative Review (PAR) of an order issued on November 
          17, 1988, by the Rent Administrator, concerning the housing 
          accommodation known as 93-43 222nd Street, Apartment 1-F, Queens 
          Village, New York, wherein the Administrator determined that the 
          owner had failed to maintain certain services, reduced the rent, 
          and directed a restoration of services.

          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.

          This proceeding was commenced by the filing by the tenant of 
          various complaints of a decrease in services alleging various 
          conditions.

          An inspection conducted by a Division of Housing and Community 
          Renewal (DHCR) staff inspector on September 26, 1988, confirmed 
          some of the complained of conditions resulting in the issuance of 
          the Administrator's order herein appealed.

          In the PAR, the owner contends that the tenant has denied access 
          for repairs, that the "gap in the kitchen cabinet" was not 
          complained of, that the tenant refused painting citing health 
          reasons, that the window screen was fixed prior to issuance of the 
          order, and that the vermin infestation was not part of the original 
          complaint, and, for the foregoing reasons, the order should be 
          reversed.  In addition, the owner contends that the Agency did not 












          CL110164RO




          follow established Federal procedures regarding hearing and due 
          process, that this case was brought by a tenant representative in 
          violation of a Court stipulation, and that the tenants have 
          harassed the owner in every aspect of building management and have 
          filed duplicate complaints for rent reductions.

          After careful consideration the Commissioner is of the opinion that 
          the petition should be granted in part.

          The owner is correct that the Administrator's finding of a gap in 
          the kitchen cabinets is a condition which was not raised in the 
          complaint below and is one of which the owner had no notice.  The 
          Commissioner therefore finds that this condition should be elim- 
          inated from the order herein appealed.  

          The Commissioner notes that the owner's contentions that the tenant 
          refused access for repairs and refused painting citing health 
          reasons are raised for the first time in this administrative 
          appeal.  Likewise there was no evidence presented before the 
          Administrator relative to the repair of the window screen which the 
          owner also raised for the first time in this appeal.  Pursuant to 
          Section 2529.6 of the Rent Stabilization Code, review is limited to 
          facts or evidence which was offered before the Administrator.

          The Administrator's order says that there is evidence of vermin 
          infestation.  There has been no finding that extermination is not 
          being provided or is not made available to tenants desirous of the 
          service.  That this Agency, in another docket, found that extermi- 
          nation is provided monthly, does not contradict the inspection 
          results in this case.  The Commissioner notes that extermination, 
          if performed, has been ineffective and such was evident at the time 
          of inspection.  The Commissioner rejects the owner's contention 
          that vermin infestation was not part of the original complaint as 
          the record clearly shows, in one of the various statements of 
          complaint, that it was.

          The Commissioner finds there is no requirement in applicable law 
          which requires that a hearing be conducted before an order of this 
          type can be issued.  Affording an opportunity to present oral 
          testimony at a hearing is discretionary and it was not an abuse of 
          discretion to decline to conduct a hearing where the results of a 
          physical inspection confirmed the tenant's allegation of a failure 
          to maintain services.












          CL110164RO


          Although the owner alleges that the complaint was prepared by some- 
          one other than the tenant, in an attempt to harass the owner, he 
          has offered no evidence to substantiate this allegation and 
          although the owner cites Court stipulations and judicial determi- 
          nations in support of his contention that such preparation of 
          complaints was prohibited activity, the Commissioner notes that the 
          owner has not offered in evidence copies of said stipulations and 
          determinations, either before the Administrator or by attachment to 
          the petition.

          While Section 2525.5 of the Code gives tenants the right to 
          commence proceedings against an owner based on harassment, no such 
          right is available to owners.  The owner's allegations of tenant 
          harassment may not be entertained herein.  This Order nd Opinion, 
          however, is issued without prejudice to the owner's right to pursue 
          an appropriate remedy in an appropriate forum if the facts so 
          warrant.

          Although the owner contends that duplicate complaints have been 
          filed, there is no assertion or proof that more than one rent 
          reduction has been granted by the Administrator for identical 
          service deficiencies.


          THEREFORE, in accordance with the Rent Stabilization Law and Code, 
          it is 

          ORDERED, that this petition be, and the same hereby is, granted in 
          part, and the Administrator's order be, and the same hereby is, 
          modified to eliminate the condition described as gap in the kitchen 
          cabinet, and affirmed in all other respects.
           

          ISSUED:






                                                                                                                         
                                                       LULA M. ANDERSON   
                                                       Deputy Commissioner








    

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