STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL
JAMAICA, NY 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEALS OF DOCKET NOS.:
PARKCHESTER MANAGEMENT CORP.
and George King
ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
On December 6, 1990, the above-named petitioner-owner filed a
timely petition for administrative review (PAR) of an order issued
on November 15, 1990, by the Rent Administrator, concerning the
housing accommodations known as 1410 Metropolitan Avenue, Bronx,
New York, various apartments, wherein the Rent Administrator
determined that the owner's application for rent restoration should
be denied, based upon inspections of the premises, on May 24, 1990
and October 23, 1990, which disclosed the existence of peeling
paint and plaster on the bulkhead walls of section "A."
The tenant of apartment 8-C also filed a timely petition for
administrative review (PAR) of an order issued on November 15,
1990, by the Rent Administrator, concerning the housing
accommodation known as 1439 East Avenue, Bronx, New York, wherein
the Rent Administrator granted the owner's application for rent
restoration, based upon an inspection held on May 29, 1990, which
revealed that the owner was maintaining all services which were the
subject of the reduction order issued on January 27, 1989, under
Docket No. BH610099B.
The Commissioner has consolidated these two petitions as they
involve common questions of law and facts.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered that portion of the record relevant to the
issue raised by the administrative appeals.
The issue herein is whether the Rent Administrator properly denied
the owner full rent restoration for rent controlled and rent
stabilized apartments at 1410 Metropolitan Avenue, Bronx, N.Y.
under Docket No. EL630038RO, and whether the Rent Administrator
properly granted the owner rent restoration for rent controlled and
rent stabilized apartments at 1439 East Avenue, Bronx, N.Y.
In the petition for administrative review, the owner requests
reversal of the Rent Administrator's order alleging, in pertinent
part, that the service in issue is normal maintenance; is promptly
attended to and that it is of a recurring nature. The owner
further states that the work has been completed but recurs and is
done again and that there is not an identity of location between
the conditions cited in the inspection reports for the rent
reduction proceeding and those of the rent restoration proceeding.
In the tenant's petition for administrative review, the tenant
alleged that the owner failed to comply with the heating law
regardless of the outside temperature and that the owner's
application for rent restoration should have been denied.
The owner's petition was served on the tenant's on December 18,
1990, and on December 26, 1990, the tenant of Apartment 3-C filed
an answer alleging that the walls in his apartment are peeling very
badly and that as a consequence thereof, the owner's application
for rent restoration should be denied.
The tenant's petition was served on the owner and on October 18,
1991, the owner filed an answer to the petition stating that the
tenants appeal raised novel issues not relevant to this proceeding
and which were not raised below.
After careful consideration of the entire evidence of record the
Commissioner is of the opinion that the administrative appeals
should be denied.
With regard to Docket No. EL630033RO, the Commissioner notes that
although the owner has characterized the cited condition as normal
maintenance and something which is "promptly attended to," the
record reveals that "normal maintenance" did not, in this case,
include prompt attention to the cited condition form the date of
the inspection held in the reduction proceeding under Docket No.
BH610099B prior to January 27, 1989 and the date of the inspections
held in this proceeding on May 24, 1990 and October 23, 1990. The
inspections were conducted more than twenty months apart. In the
opinion of the Commissioner, an item of normal maintenance would
have been corrected within this time span and, if corrected
properly, would not have reappeared. The Commissioner further
notes that the original rent reduction order and the corresponding
inspection reports in the restoration proceedings cite the same
defective condition at the identical location.
The Commissioner also notes that the owner's application to restore
rent which was filed on April 28, 1989, contains a certification
that the water stains on the walls of section "A" were removed on
February 7, 1989.
The file reveals that the owner did not provide documentation to
support its contention that repairs were made. On the contrary,
evidence in the file shows that the owner did not correct the
subject condition prior to the issuance of the appealed order.
The Commissioner notes that while the owner questions the findings
of fact, the record clearly reflects those findings by virtue of
the DHCR inspections which occurred on May 24, 1990 and October 23,
With regard to the tenant's petition, under Docket No. EL610418RT,
the only issue raised is whether the owner is providing heat in
compliance with heating law requirements.
A review of the record reveals that the tenant raised the heat
issue for the first time on appeal and that this issue was not
Since the scope of administrative review is limited to the facts or
evidence which were raised before the Rent Administrator and the
heat issue was not raised; it may not now be considered for the
first time on administrative appeal.
According, with regard to Docket No. EL630038RO, the Commissioner
finds that the Administrator properly determined that the owner had
failed to restore all services based on the evidence of the record,
including the results of the on-site inspections of the subject
premises, correctly denied rent restoration applications for the
rent stabilized tenants and correctly granted in part rent
restoration applications for the rent controlled tenants.
Additionally, with regard to Docket No. EL610418RT, the
Commissioner finds that the Administrator properly granted the
owner's application for rent restoration in the amount of $3.00 per
month for rent controlled tenants based on the owner's maintenance
of the stairwell walls and floors of section "A."
The owner may refile for rent restoration at 1410 Metropolitan
Avenue, Bronx, N.Y. when the remaining services are restored.
THEREFORE, in accordance with the provisions of the Stabiliza-
tion Law and Code and the Rent and Eviction regulations, it is,
ORDERED, that these petitions be, and the same hereby are, denied,
and that the Administrator's orders be, and the same hereby, are
JOSEPH A. D'AGOSTA