EB 810093 RT
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: EB 810093 RT
Rosemary Camas, ADMINISTRATOR'S
DOCKET NO.: EDD-8-1-0004-OR
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW
On January 30, 1990, the above-named tenant filed a petition for
administrative review of an order issued on December 28, 1989 by
a District Rent Administrator concerning the housing
accommodations known as apartment 3E, 155 Garth Road, Scarsdale,
New York, wherein the Administrator granted the owner's rent
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 petition for review.
The original proceeding was initiated by the tenant, by the
filing of a complaint of diminution in services.
An agency inspection of the subject apartment revealed that
services were not being properly maintained.
On November 20, 1986, the District Rent Administrator issued an
order, under Docket No. WE-86-S-12-S, reducing the rent based on
a finding of service diminutions in the subject apartment, among
them a defective stove and damaged flooring, inadequate fuses in
the living room and dining room, a defective light switch in the
living room, and a failure to replace tiles removed where shower
repairs had been completed.
On April 5, 1989, the owner filed an application to restore the
rent, under Docket No. EDD 8-1-0004-OR. In a later submission,
dated July 26, 1989, the owner stated, in pertinent part, that,
regarding the defective stove, the tenant had been offered the
option of a new stove at a rent increase or a reconditioned
stove without an increase. The owner submitted a copy of a
letter containing this offer, dated July 21, 1989, which it
asserted had been sent to the tenant.
On August 3, 1989 the District Rent Administrator mailed a copy
of the owner's submission of July 26, 1989 to the tenant, and
afforded her twenty days within which to respond. The tenant
failed to do so.
EB 810093 RT
By order issued December 28, 1989, the District Rent
Administrator determined that the owner had made a good faith
effort to provide a proper working stove to the tenant.
Regarding linoleum floors, the Administrator, in substance,
determined that they had not been owner-installed and by
implication were not a required service. The Administrator
further found that all of the other service defects for which the
rent had been reduced were restored. The owner was also advised
that those tiles removed where shower repairs had been completed
were to be replaced.
In her petition for administrative review, the tenant asserts, in
substance, that the owner had offered her a refurbished stove
which was larger than the one to be replaced, which the tenant
asserts would require reconstructing the surrounding area at her
own expense, thus creating a hardship. The tenant further
asserts that the linoleum floors are owner-installed. Regarding
the required electrical work and the tile work in the bathroom
the tenant asserts these installations have not been completed.
Finally, the tenant asserts that two additional electric outlets
for the kitchen had been promised to her but had not been
The owner answers the tenant's petition asserting, in substance,
that the subject apartment is in above standard condition.
After careful consideration, the Commissioner is of the opinion
that this petition for administrative review should be granted in
According to established principles of the administrative review
appeals process, a party may not raise an issue for the first
time upon administrative review if that issue could reasonably
have been raised before the administrator below. In this
proceeding, the record shows that the tenant, although she was
afforded an opportunity to submit an answer to the owner's
assertions regarding the offer to her of a suitable replacement
stove, failed to do so. Accordingly, the tenant may not now seek
to raise the issue of the suitability of the offered replacement
stove in the context of this administrative review proceeding.
Regarding the linoleum floors, the Commissioner notes that the
Rent Administrator, in the rent restoration proceeding appealed
herein, improperly disturbed the finding of the Rent
Administrator under Docket No. WE-86-S-12-S. The record reveals
that by order issued under Docket No. WE-86-S-12-S, the flooring
throughout the subject apartment was found to be water damaged
and that this was a service diminution which, among other things,
served as a basis for the rent reduction order. That order
constituted the final order of the rent agency with regard to the
linoleum floors in the subject apartment. Therefore, the
Administrator should not have reconsidered this issue in the rent
restoration proceeding below, as such reconsideration was barred
by the principles of res judicata and collateral estoppel.
Accordingly, the Commissioner is of the opinion that the
Administrator's decision regarding the linoleum floors in the
rent restoration proceeding should be revoked.
Regarding the required electrical repairs, the Commissioner notes
that, in the restoration proceeding before the Administrator, the
EB 810093 RT
tenant in her answer to the owner's application, did not deny
that those repairs had been completed, although she did deny with
specificity that certain other items had been corrected.
Accordingly, the tenant may not now seek to raise this issue in
the context of this administrative review proceeding.
Regarding the new electrical outlets which the tenant asserts
were promised to her, the Commissioner notes that this issue is
irrelevant as it was not one of the items for which the rent was
Regarding the bathroom tiles, in view of the owner's failure to
deny the tenant's assertion on appeal that it had failed to
replace the bathroom tiles as directed by the Rent Administrator,
the Commissioner is of the opinion that the Rent Administrator's
order should be modified to find that a restoration of the rent
will not be granted until these missing bathroom tiles are
THEREFORE, in accordance with the provisions of the Emergency
Tenant Protection Act and the Tenant Protection Regulations, it
ORDERED, that this petition be, and the same hereby is, granted
in part, and that the District Rent Administrator's order be, and
the same hereby is, modified in accordance with this order and
opinion so as to deny the owner's application for rent
restoration; and it is
FURTHER ORDERED, that so much of the Administrator's rent
restoration order, as determined, that the subject apartment's
linoleum floors are not an a required service be, and the same
hereby is, revoked; and it is
FURTHER ORDERED, that the owner shall refund to the tenant all
excess rent arising as a result of this order, within 30 days of
the issuance date of this order or the tenant may fully credit
this amount against future rents until fully credited.
The Commissioner notes that the owner's rent restoration
application will not be granted until the linoleum floors are
repaired and the missing tiles in the bathroom are replaced.
JOSEPH A. D'AGOSTA