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.:DD 120349-RT
:
RENT ADMINISTRATOR'S
KEVIN MCSHANE DOCKET NO.: AI 130133-OM
PETITIONER :
------------------------------------X
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW IN PART
On April 20, 1989 the above-named petitioner-tenant filed a petition for
an administrative review against an order issued on April 11, 1989 by the
District Rent Administrator (92-31 Union Hall Street, Jamaica, New York)
concerning the housing accommodations known as 44-08 47th Avenue,
Woodside, New York, Apartment D1, ( a rent controlled unit) wherein the
Administrator granted major capital improvement (MCI) rent increases for
the controlled and stabilized apartments in the subject premises based on
the installation of aluminum windows at the premises.
The landlord commenced the proceeding below by initially filing the MCI
application on September 26, 1986, together with various supporting
documentation. The order of the Administrator appealed herein, which
granted the landlord's application as to all apartments, contains the
notations that various tenants responded alleging faulty installation of
windows; inspections conducted on April 7, 1988 and December 7, 1988
revealed that windows in apartment D1 are defective; and that the tenant
of said apartment agreed that all defects have been corrected.
In this petition for administrative review the tenant of apartment D1
contends, in substance, that the increase should be revoked on the basis
that the order erroneously states that the repairs were made.
In response to the tenant's petition, the owner filed an answer stating,
in substance, that several attempts were made to service windows in
apartment D1, but the tenant failed to keep appointments. The landlord
submitted with his answer a letter dated February 12, 1990 from the window
contractor stating that the tenant failed to keep four appointments in the
last six months to service the windows.
After careful consideration of the entire evidence of record, the
Commissioner is of the opinion that this petition should be granted, in
part.
The record discloses that an inspection was conducted of the subject
apartment on April 7, 1988, the report of which disclosed, that an among
other things, that the newly installed bathroom window pane was cracked;
and that the windows installed in the kitchen, livingroom, and two
bedrooms all had inoperable locks.
DOCKET NUMBER: DD 120349-RT
The landlord subsequently submitted a statement, signed by the tenant,
dated August 1988 which reads "all materials have been furnished and
installed, and the work satisfactorily completed."
The tenant, thereafter advised the Administrator that the statement
referred to the fact that the bathroom window had been replaced but that
none of the other problems had been corrected. It does not appear from
the record that the Division notified the landlord of this statement by
the tenant.
On December 7, 1988 a second physical inspection was made of the subject
apartment, the report of which disclosed that the windows were drafty;
that the windows throughout the apartment were difficult to close and
lock; that the windows were misaligned; and that the condition notes by
the early inspection had not been corrected. In view of the record which
was before the Rent Administrator as of the issue date of the order, the
Commissioner is of the opinion that it would have been proper to have
excluded the subject apartment from the rent increase.
However, because the Division failed to inform the landlord that the
tenant had continuing complaints with the windows, and it was therefore
reasonable for the owner to rely on the tenant's statement of August 1988
that the work was satisfactorily completed, the Commissioner is of the
opinion that the rent increase for the subject apartment should be
suspended retroactive to the effective date, rather than revoked in
perpetuity.
Such suspension would ordinaryly remain in effect until such time as
appropriate corrective action is taken by the landlord. In this respect
the owner, in answer to the petition, has submitted a statement from the
window contractor dated February 1990, to the effect that the tenant
failed to keep four appointments to repair the new windows with the
preceding six months. In view of the tenant's failure to refute this
submission the allegation of that the tenant has denied access is deemed
admitted. Accordingly, the Commissioner deems it appropriate to reinstate
the increase for the windows, effective as of the date of issuance hereof.
The owner is hereby directed to repair any existing defects with respect
to the windows in apartment D-1, if it has not already done so, and the
determination herein is without prejudice to the right of the tenant
filing an appropriate service complaint with the Division, if the facts so
warrant.
THEREFORE, in accordance with the provisions of the Rent and Eviction
Regulations for New York City, it is
ORDERED, that this petition be, and the same hereby is granted in part;
that the collection of the rent increase authorized by the Administrator
for the installation of new windows be the same hereby is suspended with
respect to apartment D-1 from its inception and is hereby reinstated
effective as of the date of issuance of this order; and it is further
DOCKET NUMBER: DD 120349-RT
ORDERED, that the landlord refund to the tenant any excess rent resulting
from this Order written 30 days from the date of issuance hereof.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
|