DOC. NO.: DA 210137-RT
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.: DA 210137-RT
MILAN CHONG and : DRO DOCKET NO. CE 210207 OR/
SAMUEL TYLER, KS -003054-S
PETITIONERS :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On January 23, 1989, the above-named petitioner-tenants filed a
Petition for Administrative Review against an order issued on January
4, 1989, by a Rent Administrator concerning housing accommodations
known as Apartment D-5 located at 320 Ocean Parkway, Brooklyn, New
York, wherein the Rent Administrator determined that the owner had
corrected the conditions necessitating the July 28, 1986 order
reducing the lawful stabilized rent of the subject accommodation, and
restored the rent effective August 1, 1988.
The issue in this appeal is whether such restoration was warranted,
since certain deficiencies are alleged to continue, and others, to
have recurred.
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.
This proceeding was commenced by the filing of an Individual Tenant
Statement of Complaint in which the tenants stated that the entire
apartment required painting; that there was peeling paint from the
hallway and bedroom ceiling; that the oven does not work properly;
that a kitchen light fixture is missing; that the pipe behind the
bathroom toilet is leaking; that the toilet is not stable; that
windows do not open and close properly, and the living room window is
cracked; that there were roaches and mice; and that there was
insufficient hot water, especially on weekends.
In answer to the tenants' complaint, the owner advised that all
defects had been corrected, with the exception of the painting of the
apartment which was not yet due. Additionally, the owner stated that
the exterminator is in the building once each month.
DOC. NO.: DA 210137-RT
On June 2, 1986 the Division of Housing and Community Renewal
inspector found that the kitchen had a loose light fixture with
exposed wires and a missing globe; that the flushometer leaks; that
there was peeling paint and plaster on the hallway ceiling and walls;
that interior moldings had not been caulked or painted; that there was
evidence of vermin. Based upon this physical inspection, the Rent
Administrator determined that service decreases had occurred in the
subject apartment, and reduced the rent to the level in effect prior
to the last rent guidelines increase that commenced before October 1,
1985, the effective date of the order.
By letter dated August 8, 1988 the tenant advised that the owner had
corrected all problems except extermination. During a telephone
conversation with a DHCR staff member on August 30, 1988, the tenant
confirmed that the owner had complied with all directives of the order
reducing rent, and an application for restoration of rent was sent to
the owner on August 31, 1988.
On September 7, 1988 the owner filed an application with the Division
to restore the rent. A physical inspection, conducted on November 18,
1988, found evidence of roach infestation in the kitchen. By notice
dated November 29, 1988, the Rent Administrator requested a statement
from a licensed exterminator to substantiate the correction of the
condition. The owner on December 12, 1988, submitted a letter from a
licensed exterminator which stated that, according to the his service
representative, the apartment is relatively vermin and rodent free.
On January 4, 1989, the Administrator issued the order here under
review, granting the application to restore the rent effective August
1, 1988.
In their petition for administrative review, the tenants allege that
the statement that there was no evidence of roaches in the kitchen and
that extermination is being provided is false; that there are also
roaches in other areas of the house; that the plaster on the ceiling
is peeling in the bedroom, and is getting worse since the radiator
above them is leaking again. The tenants additionally question the
effective date of the restoration, August 1, 1988, since the
Division's letter stating that the owner had complied with the
directive to restore services was dated August 31, 1988. The tenants
further allege lack of notice that the owner had filed the application
to restore the rent.
In answer to this petition, the owner asserts, in substance, that the
Administrator's order is correct and should be affirmed.
The Commissioner is of the opinion that this petition should be
granted.
DOC. NO.: DA 210137-RT
Pursuant to Section 2523.4(a) of the Rent Stabilization Code:
A tenant may apply to the DHCR for a restoration of the
legal regulated rent to the level in effect prior to the
most recent guidelines adjustment, and the DHCR shall so
reduce the rent for the period for which it is found that
the owner has failed to maintain required services.
Required services are defined in Section 2520.6(r) to include repairs
and maintenance.
The Commissioner finds that the Administrator misstated the findings
of the DHCR inspector in stating that there was no evidence of roaches
in the kitchen. The Commissioner further finds that the
exterminator's statement submitted by the owner was inadequate to
outweigh the findings of the physical inspection. Accordingly, the
Commissioner finds that the Administrator erred in its finding that
the rent should be restored, and further finds that the order of
restoration should be revoked and that the owner's application should
be denied.
The owner is directed to reduce the rent in accordance with the rent
reduction order, and to refund amounts collected in excess of the
adjusted rent.
This order is issued without prejudice to the filing by the owner of
another application for a restoration of rent, when the condition has
been corrected.
THEREFORE, in accordance with the Rent Stabilization Law and Code, it
is
ORDERED, that this petition be, and the same hereby is, granted, and
that the Rent Administrator's order be, and the same hereby is,
revoked, and that the owner's application be, and the same hereby is,
denied.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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