DC130297RO
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.: DC130297RO
JOHN H. WINFREY RENT
ADMINISTRATOR'S DOCKET
NO.: AK110374S
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above named petitioner-owner timely refiled a Petition for
Administrative Review against an order of the Rent Administrator
issued June 18, 1987. The order concerned housing accommodations
known as Apt. 1L or 2B located at 155-01 90th Ave., New York, N.Y.
The Administrator directed restoration of services and ordered a
rent reduction for failure to maintain required services.
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 November 14, 1986 by
filing a Statement of Complaint of Decrease in Services wherein he
alleged that the owner was not maintaining certain required
apartment services. A review of the complaint form reveals that
the tenant listed Apt. 1L as his mailing address and that Apt. 2B
was listed as the subject of the proceeding in a different ink and
handwriting.
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The response form provided to the owner
listed Apt. 2B as the subject apartment of this proceeding. The
owner filed a response and informed the Administrator of the fact
that the tenant had listed two different apartments on the
complaint but addressed the complaint for both apartments. For
Apt. 1L, the owner stated that the exterminator services the
building on a regular basis but the tenant does not sign up, that
a service order for this tenant's refrigerator was issued to a
contractor on December 22, 1986 but the repair person has not been
able to obtain access, that the kitchen walls and ceilings were
sheetrocked on October 16, 1986 for which the tenant signed a work
order, that the paint job was redone on November 12, 1986 for which
the tenant again signed a work order, and that new windows have
DC130297RO
been installed throughout the building for which the DHCR has
granted a rent increase.
The Administrator ordered a physical inspection of Apt. 1L.
The inspection was conducted on March 5, 1987 and revealed that the
new windows in the kitchen, bathroom and living room are all very
drafty, the kitchen ceiling has leaks and cracks and was bulging,
the refrigerator was starting to peel, that the oven door was
defective and the side of the stove was rusted and had holes.
The Administrator issued the order here under review on June
18, 1987 and ordered a rent reduction based on the inspector's
report. The Commissioner notes that the order here under review
cited the tenant's mailing address as Apt. 1L and the subject
premises as Apt. 2B. An amended order was issued on July 10, 1987
correcting the subject premises to Apt. 1L.
On appeal the owner states, in relevant part, that the
apartment designation on the complaint and order is incorrect and
that the owner brought this to the Administrator's attention in its
answer to the complaint. The owner further argues that no rent
reduction is warranted because the tenant does not provide access
to the exterminator, that the windows were caulked, and the tenant
signed the work order for this on April 10, 1987, that the ceiling
was repaired on December 10, 1987 and the tenant signed off for
this as well, and that the refrigerator and stove work properly but
have minor aesthetic defects that do not warrant a rent reduction.
The petition was served on the tenants of Apts. 1L and 2B.
The tenant residing in Apt. 2B filed a response on August 15,
1989 and stated, in relevant part, that the subject apartment of
this proceeding is Apt. 1L and that the inclusion of Apt. 2B in the
complaint was an error made by this tenant when he assisted the
tenant of Apt. 1L in completing the complaint form.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
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 required services and the Administrator
shall reduce the rent upon finding that such services are not being
maintained. Required services are defined to be those services the
owner was required to maintain on the applicable base date,
including repairs and maintenance.
With regard to the owner's argument that the tenant did not
permit access to the exterminator, the Commissioner notes that the
owner's answer does not establish that specific appointments were
scheduled for access which the tenant did not honor. Absent such
specifics, the owner's claim of failure to permit access was
properly rejected by the Administrator.
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With regard to sign-offs the tenant allegedly executed, the
Commissioner notes that the sign-offs for the kitchen ceiling was
dated October 16, 1986 and November 11, 1986 and thereby pre-dated
the complaint. The sign-off for the window repairs was not
submitted to the Administrator.
The Commissioner finds that the Administrator based this
determination on the entire record including the results of the on-
site physical inspection described above. The owner has not
rebutted the inspector's report and has not demonstrated that it
was prejudiced by the error in listing two apartments on the
complaint form. As noted above, the owner's answer to the
complaint addressed the conditions in Apt. 1L. The order here under
review is affirmed.
The automatic stay of the retroactive rent abatement that
resulted from the issuance of the Administrator's order is vacated
upon issuance of this order and opinion. The Commissioner notes
that the owner's application for rent restoration, which was
assigned Docket No. BK110115OR has been granted by the
Administrator.
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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