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.:
JUDE & FLORENCE FOSTER,
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely Petition for Administrative
Review (PAR) of an order issued on December 7, 1989, concerning the
housing accommodations known as 913 St. Marks Avenue, Brooklyn,
New York, Apartment 3, wherein the Rent Administrator determined
the tenant's complaint of decreased services.
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 provide adequate heat and
hot water consistently.
In an answer, the owner denied the allegations set forth in the
complaint, and asserted that the boiler setting was maintained
above the legal minimum and that no other tenants complained of
Thereafter, the Division of Housing and Community Renewal (DHCR)
conducted an inspection of the subject apartment. The DHCR
inspector observed that adequate heat was provided and that the hot
water was adequate in the kitchen, but that the bathroom hot water
temperature was inadequate.
The Rent Administrator directed the owner to restore the service
and further, ordered a rent reduction for this rent controlled
In this petition for administrative review, the owner, in sub-
stance, asserts that the heat and hot water are provided by the
same equipment, and argues that it is not possible to find adequate
heat and adequate hot water in the kitchen fixture, but inadequate
hot water in the bathroom fixtures. The owner also points to a
prior order wherein the Rent Administrator denied a prior applica-
tion setting forth the same complaint.
The tenant filed an answer, concurring with the findings below, and
pointing out that it is the owner's responsibility to correct the
problems causing the condition found below.
After careful consideration, the Commissioner is of the opinion
that the petition should be denied.
Pursuant to Section 2202.16 of the Rent and Eviction Regulations,
the DHCR may order a rent reduction where it is found that the
owner has failed to maintain essential services, which include but
are not limited to heat and hot water.
The owner's bare assertion on appeal that the conditions found
could not exist is not a sufficient basis for modifying or revoking
the Rent Administrator's order which determined that the owner was
not maintaining an essential service. The Rent Administrator's
order was based on the report of an inspection by a DHCR staff
inspector who was not a party to the proceeding and not an ad-
versary to the owner. The inspection report was properly included
in the record and which was entitled to, and afforded, substantial
The fact that a prior application setting forth the same complaint
was denied did not preclude a subsequent finding of reduced ser-
vices and is not inconsistent with the tenant's complaint that the
hot water service provided was sporadic and intermittent.
Division records also indicate that the Rent Administrator issued
an order on February 21, 1992, granting the owner's rent
restoration application under Docket No. EE220016OR.
THEREFORE, in accordance with the New York City Rent and Eviction
Regulations, it is
ORDERED, that the owner's petition be, and the same hereby is,
denied and that the Rent Administrator's order be, and the same
hereby is, affirmed.
LULA M. ANDERSON