ADM. REVIEW DOCKET NO.: DH 510030 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.:
DH 510030 RT
:
DISTRICT RENT
ADMINISTRATOR'S
DOCKET NO.: CD 510485 S
HETTIE SAVAGE
PETITIONER :
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ORDER AND OPINION DENYING PETITION IN PART,
AND REMANDING PROCEEDINGS FOR FURTHER
REVIEW IN PART
On August 4, 1989, the above-named petitioner filed a
Petition for Administrative Review against an order issued on
July 6, 1989 by the Rent Administrator of the Gertz Plaza,
Jamaica, District Rent Office concerning the housing
accommodations known as 455 Fort Washington Avenue, Apt. 2-D, New
York, New York.
The Administrative Appeal is being determined pursuant to
the provisions of 9NYCRR 2523.4.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issues raised by the administrative appeal.
On April 23, 1988 the tenant filed a complaint of decrease
in services alleging, among other conditions complained of, the
following: That several months before, owner had replaced
tenant's defective refrigerator with a new unit. The old
refrigerator door opened to the left, while the replacement
refrigerator's door opens to the right. Due to the unique
configuration of tenant's kitchen, this made getting food out of
the refrigerator extremely difficult for the tenant.
In its answer, dated June 2, 1988, the owner responded to
the above complaint by stating that the replacement was in
"operating condition," and thus (per DHCR regulation) does not
have to be replaced.
On June 2, 1989 a physical inspection of the subject housing
accommodation was conducted by the DHCR. The inspector, in his
report, noted that "tenant refers to refrigerator handle on left
ADM. REVIEW DOCKET NO.: DH 510030 RT
side next to kitchen wall and cannot open up comfortably due to
limited space in the kitchen."
On July 6, 1989, the Rent Administrator issued an order
based on the report of the physical inspection, reducing the
legal regulated rent by the percentage of the most recent
guidelines adjustment for the tenant's lease which commenced
before June 1,1988, the effective date of the order and directing
the owner to refund to the tenant all amounts collected in excess
of the reduced rent since the above mentioned effective date.
In her petition, the tenant contends that the
Administrator's order should be modified to the extent that it
made no finding regarding the tenant's difficulty in opening the
refrigerator door, and that there are defrosting problems with
the refrigerator.
The Commissioner is of the opinion that this proceeding
should be remanded in part, and should be denied in part.
The Commissioner notes that the inspector was not instructed
to check the door problem, and that the inspector instead took
testimony from the tenant concerning the problem.
The Commissioner is of the opinion that the portion of the
proceedings dealing with the tenant's difficulty with the
refrigerator door be remanded for further review.
An examination of the record reveals that tenant did not
make allegations of defrosting problems below, but made them for
the first time at PAR. DHCR policy and procedure bars
petitioners from raising allegations at PAR that were not raised
below.
The Commissioner is of the opinion that the portion of the
PAR dealing with tenant's allegations at PAR of defrosting
problems should be denied.
This order is issued without prejudice to the tenant's
right to file a new complaint of decrease in services, if the
facts so warrant.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, it is
ORDERED, that this petition for administrative review be,
and the same hereby is, remanded in part to the Administrator for
further review, as to the Administrator's failure to consider the
tenant's complaint regarding the refrigerator door and denied in
part as to tenant's contention at PAR of defrosting problems.
ISSUED:
ADM. REVIEW DOCKET NO.: DH 510030 RT
ELLIOT SANDER
Deputy Commissioner
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