DOCKET NO.: EL 610213 RO
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.: EL 610213 RO
Finkelstein Morgan DRO DOCKET NO.:
DK 610575 S
PETITIONER
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ORDER AND OPINION REMANDING
On December 17, 1990 the above-named owner filed a Petition
for Administrative Review (PAR) against an order issued on
December 5, 1990 by the District Rent Administrator at Gertz
Plaza, Jamaica, New York, concerning the housing accommodations
known as 960 Grand Concourse Apartment 5H Bronx, New York wherein
the Administrator reduced the tenant's rent on a finding of a
reduction of services.
The applicable law is Section 2523.4 of the Rent
Stabilization Code.
The issue on appeal is whether the Administrator's order was
proper.
The tenant commenced these proceedings on November 29, 1989
by filing a complaint alleging various reductions in service.
In its answer, dated January 8, 1990, the owner stated that
repairs would be made.
An inspection was conducted on May 1, 1990 by a member of
the Division's inspection staff. The inspector confirmed the
existence of some of the conditions claimed by the tenant, and
found that other complained-of conditions did not exist.
The owner responded to the inspection report on July 24,
1990, by submitting to the Administrator a copy of a work order
signed by the tenant on January 17, 1990, wherein the tenant
stipulated that repairs had been performed to his satisfaction
DOCKET NO.: EL 610213 RO
A second inspection as conducted on November 16, 1990 by a
member of the Division's inspection staff. The inspector found
that despite the repairs claimed by the owner below, the original
malfunction had either recurred or had never been repaired
properly.
On December 9, 1990, the Rent Administrator issued an order
based on the report of the physical inspection, reducing the
legal regulated rent by the percentage of the most recent
guidelines adjustment for the tenant's lease which commenced
before January 1, 1990, the effective date of the order, and
directing the owner to refund to the tenant all amounts collected
in excess of the reducing rent since the above-mentioned
effective date.
In its appeal, the owner includes a copy of a work order by
the tenant on July 24, 1990, wherein the tenant stipulates that
defects found in the May 1, 1990 inspection have been repaired to
his satisfaction.
The Commissioner is of the opinion that these proceedings
should be remanded to the District Rent Administrator for further
consideration to determine whether the work order submitted below
on July 24, 1990 is sufficient evidence upon which the owner's
petition can be adjudicated.
Per DHCR policy an owner's petition will be granted if the
owner submits below a work order, signed by the tenant, by which
means the tenant states that repairs were done to his
satisfaction. Although this was apparently done in the instant
case a review of the record reveal that subsequent inspection
found the complained of condition still in existence.
Owner's submission of a signed work order at PAR cannot be
considered by the Commissioner, because said work order was
available for submission to the Administrator but was not
submitted below. Accordingly to DHCR procedure, evidence that is
available but is not submitted below cannot be submitted for the
first time on appeal.
THEREFORE, in accordance with the provisions of the Rent
Stabilization Law and Code, Chapter 403, Laws of 1983, as amended
by Chapter 102, Laws of 1984, and Operational Bulletin 84-1, it
is
DOCKET NO.: EL 610213 RO
ORDERED, that this petition be and same hereby is granted to
the extent of remanding this proceeding to the District Rent
Administrator for further processing in accordance with this
order and opinion. The Administrator's order is hereby revoked.
Any arrears owed by the tenant as a result of this order shall be
paid by the tenant to the owner in equal monthly installments
over the course of the next twelve months.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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