ADM. REVIEW DOCKET NO.: EC810183RO
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.: EC810183RO
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: YDG810213S
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 #4, 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 1958 and that the
owner had the antenna removed in July 1989.
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."
ADM. REVIEW DOCKET NO.: EC810183RO
The Administrator ordered a reduction of the regulated rent,
finding that the landlord's removal of the tenant's roof top
television antenna was a decrease of an essential service.
The owner filed a Petition for Administrative Review (PAR)
appealing the Administrator's decision.
The owner bases its appeal upon two contentions.
With its PAR, the owner encloses a copy of a previous
Administrator's Order concerning a different apartment at the
subject premises. The prior proceeding (DRO #44250) had been
originated by a different tenant's objection to the 1984
Registration, in which objection the 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 that this
order #44250 is therefore determinative of the instant proceeding,
citing 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: "Based
on the evidence in the record it is determined that the landlord's
removal of the tenant's roof top television antenna is a decrease
of an essential service." On appeal, the owner states that it had
never been provided with any of the "evidence" referred to in the
Administrator's finding, other than the tenant's complaint. 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. The
owner refers to the tenant's contention in his complaint, that the
owner paid for repairs of the tenant's antenna, as "hearsay in its
purest form."
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 1958, i.e.,
ADM. REVIEW DOCKET NO.: EC810183RO
long before the base date for the Emergency Tenant Protection Act
of 1974(ETPA). Although the owner argued before the Administrator
that the installation was without the "written" (emphasis added)
permission of the owner, it is also undisputed that the tenant was
allowed to keep the antenna on the roof until sometime in 1989 when
the owner removed the antenna, apparently 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 alleged that "he [the tenant] had a rooftop
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 two arguments on appeal are
clearly without merit. DRO #44250 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. The tenant in that proceeding admitted he paid
a separate fee.
Secondly, while it is true that the order herein under appeal
was, according to the administrator based upon "The evidence in the
record", 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.
ADM. REVIEW DOCKET NO.: EC810183RO
Finally, the owner is correct that the tenant's complaint did
not allege that the owner had provided the antenna in question.
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 that on March 10, 1992, in a similar
proceeding involving a different tenant in the same portion of the
complex, the owner filed an Application for Rent Restoration with
the Administrator under docket # GC910010OR, 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.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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