DOCKET NOS.: EA810279RT
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 :
APPEALS OF ADMINISTRATIVE REVIEW
: DOCKET NO. EA810279RT
BARBARA ANN STROMPF DISTRICT RENT ADMINISTRATOR'S
: DOCKET NO. MBI810030S
PETITIONER
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ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On January 29, 1990, the above named petitioner-tenant timely refiled a
Petition for Administrative Review against an order issued on November 9,
1989, by the Rent Administrator, 55 Church Street, White Plains, New York,
concerning housing accommodations known as Apartment 5B, 300 Hayward Avenue,
Mount Vernon, New York.
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 August 18, 1987 the tenant filed a complaint of Rent Overcharge with the
Administrator, stating that the owner had failed to reduce the rent pursuant
to a prior order of the DHCR which had found a decrease in services and
ordered a rent reduction.
In a letter dated August 19, 1987 the tenant complained to the Administrator
that the leak which the owner told the tenant had been repaired had either
recurred or had not been repaired in a workmanlike manner. This letter
captioned the docket number of a prior rent reduction proceeding (MBA810022S)
but also referred to the overcharge complaint. The Administrator docketed
the new proceeding as a service complaint and served both the complaint and
the letter on the owner. (The 1987 rent reduction ordered in MBA8100022S was
in effect until March 1, 1989 when the rent was restored under docket number
MDC810009OR issued May 19, 1989.)
On November 5, 1987 the owner answered the tenant's complaint and the letter,
contending that the repairs had been made. On March 7, 1988 the owner
submitted a letter to the Administrator, in which it claimed that the tenant
had denied access to repairmen. The owner also enclosed a copy of a check by
which the tenant was reimbursed $4,309.00 for the excess rent of which the
tenant had complained.
DOCKET NOS.: EA810279RT
On April 8, 1988 the tenant submitted a statement to the Administrator, in
which she stated that, as per instruction of the Compliance Bureau, she
personally paid for painting and plastering her apartment and was to seek
reimbursement from the owner. The tenant claimed that the owner had not yet
reimbursed her. However, the tenant enclosed a statement from her painter
stating that he had advised against painting because the outer leaks had not
been properly repaired. Accordingly, the tenant stated that the owner should
not receive a rent restoration.
On November 9, 1989 the Administrator issued the Order herein under appeal
advising the tenant that if she had not yet been reimbursed by the owner
"[s]he may pursue her claim in a court of competent jurisdiction." The order
stated that the tenant had acknowledged that the apartment had been painted
and plastered. However, the order did not address the tenant's claim that
the owner had failed to properly repair the exterior leaks.
The tenant refiled this Petition for Administrative Review (PAR) on January
29, 1990, in which she states that "this was not my complaint." That is, the
tenant contends that the complaint was not to seek reimbursement for the
painting and plastering which she had done at her own expense. Instead, she
argues that after the restoration of her rent she saw that the leak was still
present. In an addendum to the refiled petition the tenant states, in
substance, that she received a second rent reduction (apparently Docket
Number MDH810094S, issued December 11, 1989) for the services in question
subsequent to the first filing this petition on December 7, 1989, which had
been rejected under docket number DL810153RT, the present petition being the
timely refiling thereof. However, she argues on appeal that this recent rent
reduction is inadequate because the Administrator therein rolled back her
rent to the rent in effect prior to the most recent Guidelines adjustment
which occurred before October 1, 1989, the effective date of the December 11,
1989 order. The tenant contends the December 11, 1989 order should have
reduced her rent to the same level it had been reduced to in order number
MBA810022S, issued in 1987, for the same decrease in service. The 1987
reduction was eliminated on May 19, 1989 under docket number MDC810009OR
wherein the owner was granted a rent restoration. In effect, the tenant is
arguing that the December 11, 1989 rent reduction for the same service
demonstrates retroactively that the May 19, 1989 restoration was premature
because the leak had either not been fixed or had not been fixed properly.
Therefore this leak was and is a "continuing problem" and the rent should
return to the level set in the 1987 order.
In response the owner contends that the "tenant is wrong. She does have a
rent reduction under Docket No. MDH810094S [the December 11, 1989 order]...
We are continuing to work in correcting this condition and filing for a rent
restoration." However, the owner does not confront the tenant's contention
that the December 11, 1989 reduction was inadequate,
The Commissioner is of the opinion that this petition should be denied.
At the outset, the Commissioner notes, as the above tortured procedural
history makes clear, the tenant's complaint in this proceeding was an
overcharge based on the owner's failure to reduce the rent to the level
required by a prior service order (MBA8100022S). The owner's March 7, 1988
response contained documented and undisputed proof that the overcharge had
been refunded in full. Accordingly, the complaint could and should have been
treated in an overcharge complaint and then been resolved based on the
owner's refund. Instead, the Administrator docketed it as a service
complaint, based in part on the August 19, 1987 letter from the tenant
DOCKET NOS.: EA810279RT
referred to above. That letter alleged that the leak which had been the
subject of the May 26, 1987 order reducing the rent (MBA810022S) had recurred
despite the owner's allegation to the tenant that it had been repaired.
Thus, the letter was a premature objection to restoring the rent which had
been reduced on May 26, 1987. Accordingly, that letter could have simply
been filed in the MBA810022S file (whose rent reduction for the leak was then
still in effect). No new service proceeding was necessary; nor was a
reopening necessary.
On May 19, 1989, the rent reduced in 1987 (MBA810022S) was restored based in
part on an inspection and the tenant's statement that everything was then
satisfactory. The tenant did not appeal that restoration.
However, on September 21, 1989 the tenant filed another service complaint
based on the same leaks and received a rent reduction therefor on December
11, 1989 (MDH810094S) four days after filing the rejected petition herein.
The tenant has essentially two contentions on appeal:
(1) that subsequent to her rent being restored
effective March of 1989 the leak has recurred.
This amounts to a collateral attack on the
rent restoration order MDC810009OR, issued May
19, 1989, which could only have been
challenged in a timely petition filed within
35 days of its issuance.
(2) that the rent reduction she received on
December 10, 1989 should have been to the same
level as the first rent reduction order,
MBA8100022S, issued May 26, 1987. This
constitutes a collateral attack on the second
rent reduction order, MDH810094S, issued
December 10, 1989, which could have only been
appealed in a timely petition filed within 35
days of its issuance date. (The petition
herein is dated January 24, 1990 and was
received January 29, 1990. The original
petition herein was filed December 7, 1989,
i.e., before the issuance of MDH810094S.)
Therefore, this petition must be denied.
The Commissioner notes that the rent reduced on December 10, 1989 was
restored on April 19, 1991 and the tenant did not appeal that restoration.
This order is without prejudice to the tenant's right to file a future
service complaint if the conditions so warrant.
DOCKET NOS.: EA810279RT
THEREFORE, in accordance with the Tenant Protection Act and Regulations, it
is
ORDERED, that the petition be, and the same hereby is, denied and the Rent
Administrator's order be, ad the same hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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