DE530019RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NY 11433
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IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: DE530019RO
Jasper Associates,
RENT ADMINISTRATOR'S
DOCKET NO.: CD530094B
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely petition for administrative
review of an order issued on March 28, 1989 concerning the housing
accommodations known as 45 Tiemann Place, New York, New York,
wherein the Rent Administrator determined the tenants' complaint of
a decrease in building-wide services.
The Commissioner has reviewed all the evidence in the record and
has carefully considered that portion of the record relevant to the
issues raised by the petition.
The tenants commenced this proceeding by filing a complaint
asserting that the owner had failed to maintain certain services in
the subject building.
In an answer, the owner denied the allegations set forth in the
complaint or otherwise asserted that all required repairs had been
or will be completed.
Thereafter, the DHCR conducted an inspection of the subject
premises. The DHCR inspector reported a missing laundry room sink,
basement and laundry room walls and ceilings painted in an
unworkmanlike manner and in need of repainting, cracks on the east
side of the building between the fourth and fifth floor, exterior
masonry in need of painting, roof leaks into a sixth floor
apartment, uneven plastering on a ground level wall, and no lock or
handle on the building entrance door. The inspector also reported
that there were cracks on the elevator floor, that the elevator cab
required painting and that the elevator vent was not working.
Other services were found to be maintained.
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The Rent Administrator directed restoration of these services and
further, ordered a reduction of the stabilized and controlled
rents.
In this petition for administrative review, the owner argues that
the complaint had been effectively withdrawn prior to the issuance
of the Rent Administrator's order per a settlement entered into by
the parties in Housing Court, represented by Counsel, and so
ordered by the presiding Judge. However, the copy of the
stipulation submitted with the petition is not dated, and lacks the
Judge's signature.
The owner also argues that it was denied due process in that the
Rent Administrator failed to give the owner notice of the
inspection or of the results thereof, allegedly departing from the
DHCR procedures normally afforded the processing of complaints.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
Pursuant to Section 2523.4 of the Rent Stabilization Code, DHCR is
required to order a rent reduction, upon application by a tenant,
where it is found that an owner has failed to maintain required
services. Pursuant to Section 2202.16 of the Rent and Eviction
Regulations, the Rent Administrator may impose a rent reduction if
there has been a decrease in essential services, furnishings or
equipment, among other items.
The owner's petition does not establish any basis for modifying or
revoking the Administrator's order, which determined that the owner
was not maintaining services based on a physical inspection
confirming the existence of defective conditions in the subject
building for which a rent reduction is warranted.
The additional assertion submitted on appeal, that the tenants and
the owner were negotiating or had stipulated to have the complaint
withdrawn could not be considered, since scope of review is limited
to evidence and issues submitted to the Rent Administrator for
consideration. It is also not clear from the owner's statements if
the alleged settlement occurred prior to or after the date of the
Rent Administrator's order.
The Commissioner also rejects the argument that the owner was
denied due process because it was not apprised of the inspection
nor notified of the results prior to the determination. Neither
the Rent Stabilization Law nor the Code require that such notice be
given. The owner was fully informed of the allegations in the
tenant's complaint. The inspection merely confirmed some of the
allegations in the complaint. Empress Manor Apartments v DHCR,
147 A.D. 2d 642, 538 NYS 2d 49 (A.D.2nd Dept. 1989).
The Commissioner notes that DHCR records reveal that the Rent
Administrator issued an order (Docket No. FD530294OR) on January
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23, 1992 that granted the owner's rent restoration application.
The automatic stay of the retroactive rent abatement that resulted
by the filing of this petition is vacated upon issuance of this
order and opinion.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
and the City Rent and Eviction Regulations, 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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