DB410165RO
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 SJR 6788 DEEMED DENIAL
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: DB410165RO
DWELLING MANAGERS, INC. RENT
C/O F.B.S.A. & G., P.C. ADMINISTRATOR'S DOCKET
NO.: CG410079RP
PETITIONER AF410755S
----------------------------------x AF410467S
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On February 8, 1989 the above named petitioner-owner filed a
Petition for Administrative Review against an order of the Rent
Administrator issued January 13, 1989. The order concerned housing
accommodations known as Apt 33F located at 60 East 8th Street, New
York, N.Y. The Administrator issued an order pursuant to remand
from the Commissioner wherein a prior rent reduction order was
affirmed.
Subsequently the owner filed a petition pursuant to Article 78
of the Civil Practice Law and Rules in Supreme Court wherein it
deemed its petition for administrative review denied. The court
remitted the proceeding to the DHCR based on its agreement to issue
an order in this matter no later than June 11, 1993.
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
The tenant commenced this proceeding on June 19, 1986 by
refiling a Statement of Complaint of Decrease in Services dated
July 24, 1984 wherein she alleged various services deficiencies in
her apartment and further alleged that the owner had failed to make
repairs upon request. The complaint was assigned Docket No.
AF410755S.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner filed a response on August 15,
1986 claiming that the tenant's complaint had been terminated by an
order issued on December 7, 1984 (Docket No. LS000420S).
The Administrator ordered a physical inspection of the subject
DB410165RO
apartment. The inspection was conducted on October 16, 1986 and
revealed the following:
1. Defective oven door,
2. Foyer bathroom sink stopper does not work and
faucet handle drips,
3. Bedroom bathroom stopper does not work, sink does
not hold water and cold water faucet drips,
4. Bedroom window frame and wall area are leak damaged
and peeling plaster,
5. Peeling paint and plaster from living room window
sill,
6. Wall by window in den and window sill are leak
damaged.
The Administrator issued an order on February 17, 1987 and
ordered a rent reduction of an amount equal to one guideline
adjustment based on the report of the inspector.
The owner filed an administrative appeal of the above
described order. On July 20, 1988 the Commissioner issued an order
wherein the petition was granted and the proceeding was remanded to
the Administrator (Docket No. BC410345RO). The Commissioner ruled
that a number of complaints regarding this apartment had been filed
by the tenant and the resulting orders of the Administrator had
created confusion regarding the status of this proceeding. The
Commissioner instructed the Administrator to allow the owner 20
days to submit a response to the complaint herein.
The Administrator sent a notice to the parties on November 17,
1988 informing them that the rent reduction order described above
was being reconsidered pursuant to the Commissioner's order of
remand. The proceeding was now assigned Docket No. CG410079RP and
the Administrator noted that the tenant's complaints bearing Docket
Nos. AF410755S and AF410467S were being reconsidered. The
Commissioner notes that the Administrator's order issued in Docket
No. AF410467S found that two windows in the living room, one in the
bedroom and one in the den are defective with leak damaged and
crumbling plaster, that the oven door gasket is missing, the spring
is defective and the door slams shut and that the bathroom wash
basin faucets leak at the base. The Administrator ordered
restoration of services but did not order a rent reduction.
The owner filed a response to the notice on November 29, 1988.
The owner stated, in sum, that the tenant had denied access to the
apartment on several occasions and that when the tenant did afford
access repairs were made. The owner attached copies of prior
DB410165RO
responses filed in response to the complaints described above. The
owner also attached copies of seven letters sent to the tenant by
certified mail for the period between July and November, 1986
wherein access to the apartment was demanded. Finally, the owner
attached copies of bills showing that repairs were made in the
subject apartment in December, 1987 and January and February, 1988.
The Administrator ordered a physical inspection of the subject
apartment. The inspection was conducted on December 30, 1988 and
revealed the following:
1. Foyer bathroom stopper stuck in open position,
2. Bedroom window frame wall area leak damaged with
peeling plaster,
3. Living room window sill plaster and paint peeling,
4. Den wall by window leak damaged as well as den
window sill.
The Administrator issued the order here under review on
January 13, 1989. The Administrator noted that the owner had filed
for rent restoration (Docket No. CC410166OR) and that an inspection
conducted in conjunction with that proceeding revealed that
services had not been restored. The Administrator further noted
that the physical inspection described above revealed that services
had not been restored. Therefore, the Administrator ordered that
the order bearing Docket No AF410467S, which ordered restoration of
services but did not order a rent reduction, was revoked and that
the order bearing Docket No. AF410755S, which ordered the rent
reduction described above, was affirmed.
On appeal the owner states that the four conditions reported
in the December 30, 1988 inspection were corrected and that the
tenant has failed to provide access. Specifically, the owner
attached copies of letters sent to the tenant on October 20, 1988
and November 2, 1988 wherein it inquired if the conditions cited
above still existed. The owner attached copies of submissions
heretofore filed with the Administrator. The owner stated that no
response was ever received. The petition was served on the tenant
on May 5, 1989.
The tenant filed a response on June 5, 1989 wherein she stated
that she had not denied access to the owner, that the owner had not
made repairs and that the order here under review should be
affirmed. The owner filed a reply on June 28, 1989 wherein it
stated, in sum, that the tenant failed to properly inform the owner
of the apartment conditions and allow repairs to be made.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
DB410165RO
The submissions by the owner before the Administrator and in
this administrative appeal proceeding contain mere conclusory
statements that repairs have been made and that the tenant has
denied access. However, by the owner's admission, it had obtained
access to the apartment on some occasions and had the opportunity
to make complete and workmanlike repairs but failed to do so. The
owner cannot succeed on a claim of failure to make repairs due to
denial of access when it admits it has been granted access to the
apartment. With regard to the owner's statements that it had made
the required repairs, the physical inspection described above, as
well as the inspection conducted in the rent restoration
proceeding, reported that services had not been restored. The
Commissioner has consistently ruled that the results of DHCR
physical inspections are entitled to more probative weight than the
unsupported allegations of a party to the proceeding. The order
here under review is affirmed.
The Commissioner notes that, pursuant to Section 2523.4 of the
Rent Stabilization Code, a tenant may apply to the DHCR for a rent
reduction based on the owner's failure to maintain services and the
Administrator shall reduce the rent upon a finding that these
services have not been maintained. Pursuant to Section 2520.6 (r)
repairs and maintenance are included the within the definition of
required services. The Commissioner finds that the Administrator
based this determination on the entire record including the results
of the on-site physical inspections described above. The order
here under review is affirmed.
THEREFORE, pursuant to the Rent Stabilization Law and Code it
is
ORDERED, that this petition be, and the same hereby is,
denied, and that the Rent Administrator's order be, and the same
hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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