FG130376RO, et al.
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
APPEALS OF DOCKET NOS.:
FG130376RO; FH110164RT;
MARGARET PECORA, FH110165RT; HA130212RO
Petitioner-Owner
ROBERTA ECKES RENT ADMINISTRATOR'S
& DOCKET NOS.:
CAROLANN ZABROWSKI, FA130003HW; FA130032B
Petitioner Tenants
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ORDER AND OPINION DENYING PETITIONS FOR ADMINISTRATIVE REVIEW
The above-named petitioner-owner and tenants filed timely petitions
for administrative review (PAR) of an order issued on July 16, 1991
per Docket No. FA130003HW concerning the housing accommodations
known as 42-70 156th Street, Queens, New York, various apartments,
wherein the Administrator determined the tenants' complaint of
inadequate heat and hot water.
The above-named owner filed a timely petition for administrative
review of an order issued on January 26, 1993 per Docket No.
FA130032B concerning the subject premises wherein the Rent Admin-
istrator determined the tenants' complaint of a reduction of
various building-wide services.
The Commissioner has reviewed all of the evidence in the record and
has carefully considered those portions of the records relevant to
the issues raised by the petitions.
The tenants commenced these proceedings by filing a complaint as-
serting that the owner had failed to maintain certain services in
the subject building in that the front doors were not locked, that
the on-premises superintendent was frequently unavailable and that
heat and hot water services were frequently inadequate.
FG130376RO, et al.
The Rent Administrator segregated the tenants' heat and hot water
complaint for separate and immediate processing per Docket No.
FA130003HW. The Rent Administrator served the tenants' complaint
per Docket No. FA130003HW on the owner on January 15, 1991.
In an answer received on February 1, 1991, the owner responded that
adequate heat and hot water were provided. The owner also responded
to the other complaints, stating that a new entrance door and frame
had been installed on December 1990 and that superintendent ser-
vices were adequate.
Inspections were conducted on March 6 and 11, 1991 to investigate
the tenants' heat and hot water complaint. The Division of Housing
and Community Renewal (DHCR) inspector reported that heat was
adequate in the apartments checked. However, inadequate hot water
temperatures were found in apartments 2AR, 2ER, 1BL and 2DL.
The Rent Administrator directed restoration of hot water services
and rent reductions for these four apartments. No rent reductions
were found to be warranted for the other apartments checked.
The tenants' complaint was re-served on the owner per Docket No.
FA130032B on October 30, 1992. There is no record of a response
from the owner.
An inspection of the subject premises was conducted on January 6,
1993, by a DHCR inspector who reported that the "door lock vesti-
bule" (i.e., the vestibule door lock) was defective in that it did
not lock and that there was no lock on the main entrance door.
The Rent Administrator directed the owner to restore the services
and, further, ordered a building-wide rent reduction.
In its petition for administrative review of the order per Docket
No. FA130003HW, the owner states his belief that the inadequate hot
water condition found in the four apartments was due to the fact
that some tenants have washing machines that use the available hot
water more rapidly.
The tenants' petitions of the order per Docket No. FA130003HW state
only that no one was at home to give the inspector access to their
apartments to check the heat and hot water.
After careful consideration, the Commissioner is of the opinion
that both the owner's and the tenants' administrative appeals of
the order per Docket No. FA130003HW should be denied.
FG130376RO, et al.
The owner's suggestion on appeal that the inadequate hot water
condition was due to the tenants' use of washing machines cannot be
considered. As it was not presented to the Rent Administrator for
his consideration, it is beyond the scope of review, which is lim-
ited to issues and evidence presented below.
The tenants' petitions do not set forth and establish any error of
law or fact in the proceedings below. The Commissioner further
notes that failure to provide access to the agency inspector is
sufficient reason to deny the relief requested or to terminate the
proceedings as to those tenants that failed to provide access.
The Commissioner also finds that the owner's petition for admin-
istrative review of the Rent Administrator's order per Docket No.
FA130032B, granting building-wide rent reductions predicated on a
finding of a defective "door lock vestibule" should, likewise, be
denied.
The owner's statement, set forth in the petition and in the owner's
response per Docket No. FA130003HW that a new entrance door and
frame had been installed in December 1990, fails to address and
rebut the tenants' subsequent January 1991 complaint, confirmed by
the January 1993 inspection in the proceedings per Docket No.
FA130032B, concerning the absence of an operative door lock in the
building entranceway resulting in unauthorized access to the
stairwell.
The owner's argument that the damage was due to vandalism ignores
that the owner has a continuing obligation to correct the condi-
tions as the need arises.
Concerning the owner's objection to processing the complaints under
separate dockets, the Commissioner notes that the order and opinion
per Docket No. FA130003HW was segregated to provide expeditious
processing of the potentially hazardous emergency conditions
involving lack of adequate heat and hot water, while permitting
processing of the less serious complaints in due course. It is
noted that segregating heat and hot water complaints from other
alleged conditions reflects normal agency practice. Also, the Rent
Administrator's order per Docket No. FA130003HW set forth that the
proceedings therein involved the tenants' complaint of inadequate
heat and hot water services.
The owner's suspicion that the DHCR issued the order per Docket No.
FA130032B without an inspection is without merit and belied by the
record, which is available for examination by the parties by filing
a Freedom of Information Law (FOIL) application.
Evidence of repairs submitted by the owner for the first time on
appeal could not be considered as it was beyond the scope of
FG130376RO, et al.
review, which is strictly limited to the evidence and issues
presented to the Rent Administrator for his consideration.
The DHCR records show that the Rent Administrator issued a rent
restoration order on June 5, 1992 per Docket No. FI130140OR based
on a finding that the inadequate heat conditions cited in the order
per Docket No. FA130003HW had been corrected.
The owner may file an application to restore rent previously re-
duced per Docket No. FA130032B if the facts so warrant.
The automatic stays of the retroactive rent abatements that
resulted by the filing of these petitions are vacated upon issuance
of this Order and Opinion.
THEREFORE, in accordance with the Rent Stabilization Law and Code,
and the Emergency Tenant Protection Act of 1974, it is
ORDERED, that these petitions be, and the same hereby are denied,
and that the Rent Administrator's orders be, and the same hereby
are, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
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