DOC. NO.: FC 410478-RT
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.: FC 410478-RT
JOHN MIGITZ DRO DOCKET NOS. EE-110059-OR
BEATRICE MIGITZ, : QS-003294-S
PETITIONERS : OWNER: DAVID PRAVDA
------------------------------------X KEY PARTNERS CO.
ORDER AND OPINION GRANTING PETITION FOR ADMINISTRATIVE REVIEW,
AND REMANDING PROCEEDING TO ADMINISTRATOR
On March 28, 1991, the above-named petitioner-tenants filed a Petition
for Administrative Review against an order issued on March 4, 1991 by
the Rent Administrator, 92-31 Union Hall Street, Jamaica, New York
concerning the housing accommodations known as Apartment B, 68-24 B
140th Street, Kew Gardens, New York wherein the Administrator
determined that the owner had corrected the conditions necessitating
the March 21, 1988 order reducing the rent of the subject
accommodations, and restored rent effective June 1, 1990.
The issue in this appeal is whether the Rent Administrator's order
was warranted.
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 appeal.
This proceeding was commenced by the filing, under Docket No. QS-
003294-S, of an Individual Tenant Statement of Complaint in which
the tenants stated that their wiring was very bad and rotted; that
the apartment windows were warped; and that water pressure was bad,
with leaking faucets.
On September 20, 1985, in answer to the tenant's complaint, the then
owner advised that all necessary repairs had been made.
An inspection was held at the subject apartment on October 18, 1985,
which disclosed that the insulation of the wires was rotted, and the
bathroom window sash did not open. As a result, based upon this
physical inspection, the District Rent Administrator, in Order
Number QS-003294-S determined that service decreases had occurred in
the subject apartment, and reduced the rent effective October 1,
1985.
DOC. NO.: FC 410478-RT
On April 4, 1986 the tenant filed an affirmation of non-compliance
with the Division, and a non-compliance proceeding was commenced.
Based on advice from the tenant that the property had a new owner,
the Division contacted the building agent and was informed of the
name and address of the new owner on March 28, 1989.
By letter dated March 31, 1989, a copy of the order issued against
the prior owner was forwarded to the current owner, who was advised
to comply with such order, and that failure to comply would result
in punitive action against the current owner. On April 28, 1989 an
interim compliance order was issued, directing the current owner to
effectuate the necessary repairs, and to certify to this agency that
the repairs had been completed within twenty days.
Following an allegation by the tenants that the owner had not
complied, a hearing was held on July 20, 1989, and on August 1, 1989
the Commissioner found that the owner had not complied with the
Division's prior order by failing to make repairs to various
defective windows and the defective wiring in the apartment. The
owner was fined $500.00 and directed to make the repairs forthwith.
Following further information from the tenant that the wiring had
not been repaired, on June 12, 1990, and July 20, 1990, a D.H.C.R.
inspector conducted compliance proceeding pre-hearing inspections
which found that the wiring in the apartment was dry, brittle and
crumbling in dining room, bedroom, and kitchen ceiling and outlets.
The outlets and fixtures were working at the time of the inspection.
The inspection further reported a possible fire hazardous condition.
By order dated December 5, 1990, following a hearing on September
11, 1990, the Commissioner found that the credible evidence of
record revealed that the owner had still not repaired defective
wiring at the ceiling fixtures in the dining room, bedroom and
kitchen. The owner was assessed a penalty of $1000.00, and directed
to comply with the directives of the order.
During the pendency of the compliance proceeding, on May 2, 1990 the
owner filed an Application to Restore Rent under Docket No. EE
110059-OR, claiming that it had restored all services for which the
rent reduction order was issued.
In response, the tenant stated that the electrician did not remove
any fixtures to check the wiring; that there have been a few fires
DOC. NO.: FC 410478-RT
in the development due to the faulty wiring; that if wiring is
damaged and dried up inside the fixtures and switches, this is not
"livable" as stated by the owner.
The tenant was sent a notice of inspection to be conducted on
January 22, 1991, which was rescheduled by the Division for January
25, 1991, because the tenants were not present. The Division's
records indicate that the tenant phoned from Florida on January 25,
1991, stating that the notice had been forwarded to her in Florida,
where she was staying for an eye operation, and that she would
return in March, 1991.
On March 4, 1991, the Administrator restored the rent effective June
1, 1990, based on the tenants' failure to keep the January 1991
inspection appointments.
In their petition for administrative review, the tenants submitted
a photocopy of a Miami Florida medical/hospital bill for optometric
services performed on February 25, 1991, and requested reversal of
the order. The tenants contend that the inspector agreed to await
their return to New York.
The Commissioner is of the opinion that the petition should be
granted.
Section 2523.4 of the Rent Stabilization Code states, in pertinent
part, that a tenant may apply to the DHCR for a reduction of the
legal regulated rent to the level in effect prior to the most recent
guidelines adjustment, and the DHCR shall so reduce the rent for the
period for which it is found that the owner has failed to maintain
required services.
The evidence of record establishes that the Administrator erred in
granting a restoration of rent based on the tenants' failure to keep
the January 1991 inspection appointments despite the showing in the
record that the tenants phoned DHCR on January 25, 1991 to advise
that they would return to New York in March, 1991. The tenants
contend that the inspector agreed to await their return to New York
in March 1991. The evidence of record supports the tenants'
allegations. The Commissioner notes that the June 12 and July 20,
1990 DHCR inspections, which occurred more than one month following
the owner's allegation that all services were restored, reported
faulty wiring and a possible fire hazardous condition, necessitating
continued rent reduction. Therefore, the Commissioner finds that
the Restoration Order was unwarranted, and should be revoked.
THEREFORE, in accordance with Rent Stabilization Law and Code, it is
ORDERED, that this petition be, and the same hereby is, granted, and
the Rent Administrator's order be, and the same hereby is, revoked,
and the proceeding be and the same hereby is remanded for further
DOC. NO.: FC 410478-RT
processing.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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