EB410206RO; EE410062RO
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
APPEALS OF DOCKET NOS.:
EB410206RO; EE410062RO;
BERKELEY ASSOCIATES, RENT ADMINISTRATOR'S
DOCKET NO.:
DE410075OR
Petitioner
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ORDER AND OPINION GRANTING PETITIONS FOR
ADMINISTRATIVE REVIEW, IN PART
The above-named petitioner-owner filed a timely petition for admin-
istrative review (PAR) of an order issued on January 3, 1990
concerning the housing accommodations known as 400 East 54th
Street, New York, New York, Apartment 30-D, wherein the Adminis-
trator determined the owner's application to restore rent
previously reduced per Docket No. L0002648S.
The owner filed a second timely petition for administrative review
of the Rent Administrator's amended order issued on April 6, 1990
concerning the subject premises. The amended order provided that
the Agency had no jurisdiction over the asbestos issue raised by
the tenant.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered the portion of the record relevant to the
issues raised by the petitions.
In the rent reduction order per Docket No. L0002648S dated April
11, 1986, the Rent Administrator delineated the conditions
requiring repairs:
1. Defective living room and bedroom floors,
2. Defective kitchen and bathroom faucets,
3. Painting and plastering required throughout the
apartment with seepage and leakage in the living
room and bedroom and a
4. Refrigerator freezer not operating properly.
EB410206RO; EE410062RO
The owner commenced the proceedings herein under review by filing
a rent restoration application. The owner acknowledged that the
tenant provided access for certain repairs, and that as a result
the kitchen and bathroom faucets and the refrigerator services had
been restored by April 21, 1989.
However, the owner also contended that the tenant refused to pro-
vide access to the owner to repair the floors and walls, refusing
the owner's offer to temporarily relocate the tenant to Apartment
29-D during the pendency of the apartment-wide repairs.
In support, the owner submitted a copy of an order by Justice Baer
of the Supreme Court, New York County, before whom the Article 78
appeal of the rent reduction order was pending, issued on April 19,
1989 per Index No. 23461/87. Justice Baer's order provided, in
pertinent part, the following:
ORDERED AND ADJUDGED that the Respondent [Tenant] is
found to have wilfully refused to provide Petitioner with
complete access to Apartment 30-D at the subject premises
on or before February 21, 1989, and to temporarily relo-
cate to Apartment 29-D at the subject premises at the
sole cost and expense of the Petitioner, in contravention
of this Court's January 20, 1989 order, and it is further
ORDERED AND ADJUDGED that, by reason of Respondent [Ten-
ant's] willful refusal to provide access, the Respondent
DHCR is directed to consider, upon the filing of a rent
restoration application by the Petitioner with Respondent
DHCR, the Petitioner's rent restoration application, most
particularly whether the Respondent [Tenant's] rent may
be restored to its former level without any rent reduc-
tion and without regard to any lack of repair to
Respondent [Tenant's] apartment, effective March 1, 1989.
In an answer, the tenant asserted that, among other things, the
used replacement refrigerator was not working properly. The tenant
also asserted that the owner would not agree to observe City Health
Department and City Environmental Protection Agency ordinances in
repairing and replacing the flooring material found to contain
asbestos.
An inspection was conducted on December 8, 1989 by a DHCR
inspector. The inspection results disclosed that the living room
and bedroom floors remained defective, that the apartment required
EB410206RO; EE410062RO
painting and plastering, and that the refrigerator temperature was
inadequate. The inspection report reflected that the bathroom and
kitchen faucet conditions had been corrected.
On January 3, 1990, the Rent Administrator issued an order that
denied the owner's rent restoration application based on the
results of the inspection. The Rent Administrator issued an
amended order on April 6, 1990, noting that "the agency has no
jurisdiction over the asbestos issue". The parties were requested
to advise the DHCR whether the issue has been resolved, and the
owner was required to "submit supporting evidence when filing a new
application for rent restoration".
In the petition for administrative review of the January 3, 1990
order, the owner reiterates the argument below that the Rent
Administrator consider the owner's lack of access claims and the
Supreme Court's findings that the subject tenant wilfully refused
the owner access to cure the flooring, plastering and painting
problems.
Concerning the refrigerator defects, the owner asserts that it will
promptly take whatever action is necessary to cure the condition.
The owner also argues the order denying rent restoration was
defective because it lacked specificity.
After careful consideration, the Commissioner is of the opinion
that the petitions should be granted, in part.
The Commissioner concurs that the order of the Court finding that
the tenant had wilfully refused the owner access to cure the
flooring, painting, and plastering conditions was sufficient reason
to eliminate the conditions as predicates for denying the owner's
rent restoration application.
However, the Rent Administrator properly concluded, based on the
results of an inspection that found that the refrigerator tempera-
ture was inadequate, that the owner was not entitled to a rent
restoration. The owner's argument that the Rent Administrator's
order was defective because it did not detail the inspector's
methodology and observations is without merit. Neither due
process nor DHCR practice requires that the Rent Administrator's
order set forth the information.
The owner also filed a petition for administrative review appealing
the Rent Administrator's April 6, 1990 amended order. In addition
to reiterating the arguments above, the owner objects to the impo-
sition to submit supporting evidence that any asbestos problem in
the subject apartment has been remedied when filing a new applica-
tion for rent restoration. In light of the instant order revoking
the wall conditions and the floor conditions (which the tenant
EB410206RO; EE410062RO
asserted were the source of the alleged hazardous asbestos problem)
as predicates for denying the owner's rent restoration application,
questions arising from the asbestos allegations raised by the
tenant have been rendered moot for the purposes of these pro-
ceedings.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
it is
ORDERED, that the owner's petitions for administrative review
should be granted in part, as provided above, to revoke defective
floors and walls as predicates for denying the owner's rent
restoration application. It is further
ORDERED, that the part of the Rent Administrator's order that
denied the owner's rent restoration application predicated on a
finding of a defective replacement refrigerator be, and the same
hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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