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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.:
BL110747S
PETITIONER
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND MODIFYING ADMINISTRATOR'S ORDER
On December 6, 1988, the above-named petitioner-owner filed a Peti-
tion for Administrative Review (PAR) of an order issued on November
10, 1988, by the Rent Administrator, concerning the housing
accommodation known as 93-49 222nd Street, Apartment 2-U, Queens
Village, New York, wherein the Administrator determined that the
owner had failed to maintain certain enumerated services, reduced
the rent, and directed the 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 decrease in services alleging various
conditions.
An inspection conducted by a Division of Housing and Community
Renewal (DHCR) staff inspector on October 3, 1988, confirmed some
of the complained of conditions resulting in the issuance of the
Administrator's order herein appealed.
In the PAR, the owner states that he has had a longstanding
continued problem of obtaining access to the apartment; that, in
connection with a Civil Court action, the owner, responding to a
direction from the Court, remedied all maintenance items; that
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defective bedroom window sashes were not complained of; that window
screens are not a required service and any rent reduction based
thereon should be denied; and that the provision of an intercom has
previously been held not to be a required service. In addition,
the owner states that the Agency did not 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 Petitioner is correct that the finding by the Administrator of
defective window sashes relates to a condition which was not
complained of. The tenant's complaint cited failure of the owner
to paint exterior frames and sashes. This condition, therefore, is
eliminated as a condition in the Administrator's order.
Petitioner's claim of no access is raised for the first time in
this administrative appeal. Pursuant to Section 2529.6 of the Rent
Stabilization Code, review is limited to facts or evidence which
was offered before the Administrator.
In addition, the Division's records show that by a previous order
of the Commissioner, the provision of an intercom was determined
not to be a required service, and also is hereby eliminated as a
condition in the Administrator's order.
The apartment conditions which were the subject of the Court's
direction are separate and distinct from those raised in this
proceeding, and repair of the items on the Court's list cannot be
construed as a remedy of the conditions herein. Furthermore, the
owner's assertion that all conditions have been remedied is belied
by the results of the Division's inspection.
The owner offers no evidence in support of his contention that
window screens are not a required service. In addition, this
assertion was not raised in the proceeding below where the owner
merely denied that the tenant's screens were taken off by the
owner's employees and were not returned.
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
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testimony at 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.
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 and 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,
and the Emergency Tenant Protection Act of 1974, it is
ORDERED, that this petition be, and the same hereby is, granted in
part, and that the Administrator's order be, and the same hereby
is, modified to revoke condition No. 2 as to defective window
sashes and condition No. 5 relating to intercom, and affirmed in
all other respects.
ISSUED:
LULA M. ANDERSON
Deputy Commissioner
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