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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
APPEAL OF DOCKET NO.:
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RICHARD ALBERT,
RENT ADMINISTRATOR'S
DOCKET NO.:
BL110742S
PETITIONER
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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
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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.
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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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