DH110405RO
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.: DH110405RO
Kreisel Company, Inc.,
RENT ADMINISTRATOR'S
DOCKET NO.: DE110398S
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW,
AND AFFIRMING RENT ADMINISTRATOR'S ORDER, AS MODIFIED
The above-named owner filed a timely petition for administrative
review of an order issued on July 12, 1989, concerning the housing
accommodations known as 215-30 47th Avenue, Apartment 1E, Queens,
New York, wherein the Rent Administrator determined the tenant's
complaint of decreased 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 tenant commenced this proceeding by filing a complaint
asserting that the shower water temperature fluctuated if a toilet
was flushed and that there were backups in the kitchen and bathtub
drains.
In an answer, the owner denied the allegations set forth in the
complaint or otherwise asserted that required repairs had been
completed.
Thereafter, an inspection of the subject apartment was conducted by
a DHCR inspector who confirmed that the shower water temperature
did fluctuate momentarily, for a few seconds, between 110@F and
118@F when the tenant in the apartment above turned on her shower.
Other services decreases were found to have been corrected. Based
on the inspector's report, the Rent Administrator found that the
shower water temperature was inadequate, directed the owner to
restore the service and further, ordered a reduction of the
stabilization rent.
DH110405RO
In the petition for administrative review, the owner requests that
the order be reversed. The owner argues that the fact that the
order did not set forth the shower hot water temperature measured
at the time of inspection, deprived the owner of the opportunity to
address the issue in the petition and to rectify the condition.
The owner also alleges that the condition was the result of a
temporary disruption of services at the time of inspection due to
work related to the installation of a new boiler.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied as more fully set forth below.
Pursuant to Section 2523.4 of the Rent Stabilization Law and Code,
DHCR is required to order a rent reduction, upon application by a
tenant, where it is found that the owner has failed to maintain
required services.
The Rent Administrator's order cited inadequate hot water as the
predicate for the rent reduction in the proceedings below. The
DHCR inspector confirmed the tenant's complaint of periodic,
momentary shower water temperature fluctuation. The Rent
Administrator's order is amended to concur with the inspector's
observations, cited above. The conditions found warranted the rent
reduction granted. However, the record was insufficient to support
the Rent Administrator's finding that the hot water temperature was
inadequate.
The owner's petition does not establish any further basis for
modifying or revoking the Rent Administrator's order. The owner's
suggestion that an alleged lack of specificity in the Rent
Administrator's order deprived the owner of rights is without
merit. Service of the tenants' complaint afforded the owner the
due process notice the owner was entitled to. Moreover, the
records were available to the owner for examination after the Rent
Administrator issued the determination by filing a FOIL (Freedom of
information Law) Application.
The owner's claim on appeal that boiler repairs occurring at the
time of inspection may have affected services is beyond the scope
of review, since administrative review is limited to issues and
evidence presented to the Rent Administrator for consideration.
Moreover, in light of the fact that the hot water was provided at
the time of inspection, albeit inadequately, the owner's claim of
services interruptions due to boiler repairs fails to explain the
fluctuation condition observed.
Records also show that the Rent Administrator issued an order on
October 15, 1993 (GC110112OR) restoring the rent.
The automatic stay of the retroactive rent abatement that resulted
by the filing of this petition is vacated upon issuance of this
DH110405RO
order and opinion.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that this petition be, and the same hereby is, denied.
The Rent Administrator's order is modified to reflect that a rent
reduction was warranted based on the shower water temperature
fluctuation conditions. In all other respects, the Rent
Administrator's order is affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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