STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
92-31 UNION HALL STREET
JAMAICA, NY 11433
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: EC420090RO
Michael Nagel c/o
Kucker, Kraus & Bruh,
DOCKET NO.: CL420510S
229 West 78th Street
New York, N.Y.
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
The above-named owner filed a timely petition for administrative
review of an order issued on February 5, 1990 concerning the
housing accommodations relating to the above-described docket
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 in this petition.
The tenant commenced the proceeding below on December 29, 1988 by
filing a complaint asserting that the owner had failed to maintain
certain services in the subject apartment.
In answer, the owner denied the allegations in the complaint or
otherwise asserted in substance that services were being provided
and maintained, and repairs had been performed and would be
On December 5, 1989, a physical inspection of the subject apartment
was conducted by a DHCR staff member who confirmed the existence of
By an order dated February 5, 1990, the Administrator directed the
restoration of services and ordered a rent reduction as follows:
1. The apartment floors need scraping. $5.00
2. The toilet seat in the maid's
toilet room was worn out. $2.00
3. The stove pilot lights were defective. $3.00
In the petition for administrative review filed on March 14, 1990,
the owner contends that the conditions were de minimis, not
warranting a rent reduction; even if the items could warrant a rent
reduction, the amounts "bear no rational relationship to the nature
of the item"; the "items cited by the Administrator were totally
within the control of the tenant and may have been caused by the
tenant's own negligence"; the failure of the Administrator to
provide the owner with a copy of the inspection report prior to the
issuance of the order was a violation of due process; and that the
owner reserves the right to supplement the petition.
In answer, the tenant states in substance that many of the items
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 Rent Administrator may impose a rent reduction when there has
been a decrease in services. The owner's petition does not
establish any basis for modifying or revoking the Administrator's
determination based on a December 5, 1989 physical inspection
confirming the existence of defective conditions, which are not de
minimis but decreased services warranting a rent reduction. The
amounts of the rent reduction were not an abuse of the
The Commissioner notes that the owner has not supplemented the
petition since it was filed three years ago. The assertion that
the conditions "may have been caused by the tenant's own
negligence" is beyond the scope of administrative review, which is
limited to the issues and evidence before the Administrator.
Moreover, the owner failed to substantiate this assertion.
The contention that it is a violation of due process for the
Administrator to fail to provide the owner with a copy of the
inspection report prior to the issuance of the order is without
merit. The owner was not denied due process because the tenant's
complaint was sufficient notice. The owner was fully informed of
the allegations in the complaint but the owner failed to
investigate the allegations and make necessary repairs; the
inspection report merely confirmed some allegations in the
complaint (FH410081RO; Empress Manor Apartments v. DHCR, 538 NYS2d
49, 147 AD2d 642).
Accordingly, the Administrator's order when issued was in all
respects proper and is hereby sustained.
The rent will be restored only when an owner's application to
restore rent is filed and granted. The owner is advised to file
such an application if the facts so warrant.
The automatic stay of the retroactive rent reduction that resulted
by the filing of this petition is vacated upon issuance of this
Order and Opinion.
THEREFORE, in accordance with the Rent and Eviction Regulations,
ORDERED, that this petition be, and the same hereby is, denied, and
that the Administrator's order be, and the same hereby is,
JOSEPH A. D'AGOSTA