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.: DL-110133-RO
:
JAIME ASSOCIATES, : RENT ADMINISTRATOR'S
: DOCKET NO.: DH-110571-S
:
PETITIONER :
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ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
IN PART AND MODIFYING RENT ADMINISTRATOR'S ORDER
On December 11, 1989, the above-named owner-petitioner filed
a Petition for Administrative Review (PAR) of an order issued on
November 16, 1989 by the Rent Administrator, 92-31 Union Hall
Street, Jamaica, NY, concerning the housing accommodation known as
102-30 Queens Boulevard, Apt. 5C, Forest Hills, NY, wherein the
Administrator directed the restoration of services, further finding
that a rent reduction based thereon was warranted.
The issue in this appeal is whether the Administrator's order
was warranted.
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.
This proceeding was commenced on August 20, 1989 by the
subject tenant filing a complaint of decrease in services,
alleging, among other things, defective faucets in the kitchen and
bathroom, and broken floor tiles in the kitchen.
On September 1, 1989, a copy of the complaint was sent to the
owner with instructions to file an answer within twenty days. The
record discloses that the owner submitted an answer on September
15, 1989, however such submission was filed belatedly in the case
record and, as a result, the Administrator did not take cognizance
of it prior to the issuance of the order. The owner stated in the
answer, in pertinent part, that the items complained of had been
DL-110133-RO
taken care of and further submitted a tenant-signed statement dated
September 8, 1989 to that effect.
On November 6, 1989, a Division staff member made a physical
inspection of the subject apartment to investigate the tenant's
claims. The inspector reported, among other things, that ten floor
tiles in the kitchen were defective; that there was a leak from the
faucet mixer in the kitchen; and that there was a leak from the
cold water faucet in the bathroom.
On November 16, 1989, the Administrator issued the order
hereunder review, reducing the tenant's rent to the level that was
in effect prior to the last rent guidelines increase. The subject
order noted, erroneously, that the owner had failed to file answer,
resulting in the tenant's allegations being admitted; however, the
subject order also noted, correctly, that the rent reduction was
based upon an inspection, further citing the above-mentioned items
of the inspector's report.
In the petition for administrative review, the owner seeks
reversal of the order, asserting that an answer had been filed
(certified mail receipt dated September 15, 1989 submitted) and the
order was therefore based in part on an error in fact by reflecting
that an answer had not been filed and deeming the allegations
admitted. The owner resubmits a copy of the September 8, 1989
tenant-signed statement and claims that the leaks in the kitchen
and bathroom were corrected. Also submitted with the PAR is
another tenant-signed statement, undated, wherein the tenant
advises that the kitchen faucet had been repaired and that new
kitchen floor tiles will be installed "when I am feeling better"--
the owner claims that, based on this statement, the tenant caused
delay in completion of the tile work.
The tenant did not file an answer to the petition.
The Commissioner is of the opinion that the owner's petition
should be granted in part and the Rent Administrator's order should
be modified.
Pursuant to Section 2523.4 of the Rent Stabilization Code, a
tenant may apply to the DHCR for a reduction 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.
DL-110133-RO
In the instant case, however, the owner has established that
an answer was filed, and that answer, which was not before the
Administrator, contained a statement, purportedly signed by the
tenant, that all necessary repairs listed in the complaint had been
done. Based on this statement, the owner could reasonably assume
that no further action was required and that the proceeding before
the Division would be terminated without a rent reduction. Due
process requires that such a signed statement, if submitted by an
owner, be served on the tenant and, if challenged, that the owner
be advised that the complaint was not being withdrawn.
The subsequent physical inspection of the subject apartment
revealed that, contrary to the owner's allegation and the statement
allegedly signed by the tenant, the necessary repairs were not done
and could not possibly have been done properly in September 1989 if
two months later they were found to be defective by the Division's
inspector. A rent reduction for these conditions is required
pursuant to Section 2523.4 of the Rent Stabilization Code, but
because of the failure to verify the tenant's signature on the
signed work order or to advise the owner that the complaint was not
being terminated, the effective date of the rent reduction is
hereby modified to December 1, 1989, the first of the month
following issuance of the Administrator's order, when the owner had
actual knowledge that the complaint was still active and that the
agency's physical inspection revealed the need for additional
repairs.
The Division's records reveal that the owner's rent
restoration application was granted on November 15, 1990 (DRO
Docket No. EA-110044-OR).
THEREFORE, in accordance with the Rent Stabilization Law and
Code, it is
ORDERED, that this petition be, and the same hereby is,
granted in part and the Rent Administrator's order be, and the same
hereby is, modified in accordance with this order and opinion, to
reflect the change in the effective date of the rent reduction to
December 1, 1989.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
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