DHCR Decisions
Docket No. EB820215RO
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
APPEAL OF DOCKET NO.: EB820215RO
DRO DOCKET NO.:
DG820214S
Jonathan Woodner Co.
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 concerning the housing
accommodations known as 2 Roxbury Drive, Apartment #2, Yonkers, New
York.
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 owner had failed to maintain certain services in
the subject premises, namely, that the owner had removed the
tenant's roof TV antenna. The tenant alleged he had had the
antenna on the roof since taking occupancy in 1965 and that the
owner had removed the antenna due to the installation of a new
roof.
In its answer, the owner stated that when the tenant moved in
he was informed that there was no master TV antenna in the subject
portion of the complex. However, the owner did not deny removing
the tenant's TV antenna from the roof, but rather stated that the
tenant had no written permission to install the antenna. The owner
also alleged that to have granted such permission would have
violated the lease. Finally, the owner referred to a letter from
a roofing company which allegedly stated that all antennas must be
removed from the roof "in order to receive the proper warranties."
The Administrator ordered a reduction of the regulated rent,
finding that "a review of the records of this agency shows that a
roof top television antenna was a base date service," and that the
owner's removal of same amounted to a decrease in service.
Docket No. EB820215RO
With its petition for administrative review, the owner encloses
a copy of a previous Administrator's Order concerning the subject
premises. The prior proceeding (DRO #44250) had been originated by
the tenant's objection to the 1984 Registration, in which objection
tenant stated inter alia that a master TV antenna service for which
the tenant paid an additional fee had been incorrectly omitted from
the owner's registration of services. The Administrator noted in
that prior order that the owner had answered that master TV antenna
service "was never included in the rent," to which the tenant had
replied "that an additional fee was paid for the use of the master
TV antenna." The Administrator found that "The owner does not
provide master TV antenna services for this apartment."
The owner argues in this appeal that since the tenant had
failed to appeal that prior order, the order became final and could
not be challenged by merely refiling "the same complaint." The
owner contends that the fact that the prior order referred to a
master TV antenna whereas the order herein under review refers to
a roof top television antenna does not contradict the owner's claim
that the present proceeding is merely a refiling of a prior
complaint. Furthermore, the owner cites a Court of Appeals
decision for the proposition that "a decision of an administrative
agency which neither adheres to its own prior precedent nor
indicates its reason for reaching a different result on essentially
the same facts is arbitrary and capricious."
As a second basis for its appeal, the owner notes that the
Administrator had stated in the order herein under appeal: "a
review of the records of this agency shows that a roof top
television antenna was a base date service." The owner contends
these records were never provided to the owner and therefore the
owner had no opportunity to refute them. The owner suggests that
since such service is provided in another part of the complex, the
Administrator mistakenly assumed it was also provided in the
complaining tenant's portion of the complex.
Finally the owner emphasizes that the "gravamen of this
complaint was that the owner removed an antenna which cost him [the
tenant] $120.00 to install. The tenant does not even suggest that
the owner provides this service, as well he shouldn't in light of
the decision in the prior proceeding [DRO #44250]." (Emphasis in
the original.) Therefore, the owner argues, the complaint should
have been dismissed since it states on its face that the tenant,
not the owner, installed the TV antenna in question.
The Commissioner is of the opinion that this petition should be
denied.
It is undisputed that the tenant had installed his own roof top
TV antenna at about the time he took occupancy in 1965, i.e., long
before the base date for the Emergency Tenant Protection Act of
1974(ETPA). Although the owner argued before the Administrator
Docket No. EB820215RO
that the installation was without the "written" (emphasis added)
permission of the owner, it is also undisputed that the tenant was
allowed keep the antenna on the roof until sometime in 1989 when
the owner removed the antenna because a new roof was installed and
the roofer allegedly would not give a full warranty if the TV
antenna were to be reinstalled.
Nothing in the Administrator's order implies that the owner had
provided the antenna for the tenant. Indeed, the order states that
the tenant complained of "the removal by the landlord of her (sic)
roof top television antenna." The Administrator correctly found
that "the removal of the roof top television antenna by the
landlord" was a decrease in services.
The owner's entire petition seems to be based on the
misconception that the tenant's complaint had been that the owner
had removed a master TV antenna which had been installed by the
owner itself.
Instead, the service of which the tenant had complained and
which was found to be decreased was the service of allowing the
tenant to have a privately owned TV antenna on the roof. (In a
similar proceeding involving the same complex the Administrator had
suggested that the installation of a master TV antenna would be a
permissible substitute service which would perhaps be less
problematic with respect to the roof.)
Based on the above, the owner's three arguments on appeal are
clearly without merit. DRO #44250 merely stated that the "owner
does not provide master TV antenna services for this apartment"
(emphasis added). Accordingly, that order in no way contradicts
the order herein under review. [The Commissioner notes that that
order read as a whole seems to stand for the proposition that
master TV service was available but was not included in the rent,
a separate fee being required.] Therefore, it is irrelevant that
the tenant did not appeal that order. [The tenant in that
proceeding admitted he paid a separate fee.]
Secondly, while it is true that in the order herein under
appeal the administrator referred to a "review of the records of
this agency" the reference was apparently to the undisputed facts
in the record of this very proceeding. Certainly the owner was not
deprived of any due process right in not being provided a second
time with the allegations and admissions of the parties in their
complaint and answer. Furthermore, the Administrator did not find
that these records showed that the owner had installed an antenna
for the tenant's benefit, but merely that the owner had removed the
antenna which had been installed by the tenant. Of this there is
no dispute.
Finally, the owner is correct that the tenant's complaint did
not allege that the owner had provided the antenna in question.
Docket No. EB820215RO
However, for the reasons stated above, this contention in no way
indicates any error of fact or law in the Administrator's order.
The Commissioner notes than on March 10, 1992, the owner filed
an Application for Rent Restoration with the Administrator under
docket # GC 910010-OR, and that the rent restoration was granted by
the Administrator on April 16, 1992.
THEREFORE, in accordance with the provisions of the Tenant
Protection Regulations, it is
ORDERED, that this proceeding be, and the same hereby is,
denied and the Administrator's order be, and the same hereby is,
affirmed.
Joseph A. D'Agosta
Deputy Commissioner
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