FD 630384-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
----------------------------------x
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.: FD 630384 RO
GARNET MANAGEMENT CO. DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO.: EH 610064 HW
PETITIONER
----------------------------------x
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On April 26, 1991 the above named petitioner-owner filed
a Petition for Administrative Review against an order of the Rent
Administrator issued March 22, 1991. The order concerned housing
accommodations located at 3321 Bruckner Blvd, Bronx, N.Y. The
Administrator ordered a building-wide rent reduction for failure to
maintain adequate hot water
The Commissioner has reviewed the record and carefully
considered that portion relevant to the issues raised by this
appeal.
This proceeding was commenced on August 23, 1990 when the
tenants of 27 of the 70 apartments in the subject building joined
in the filing of a Statement of Complaint of Decrease in Building-
Wide Services wherein they alleged, inter alia, a failure to
maintain adequate heat and hot water. They attached to the
complaint a log showing dates between April and November 1989 when
there was no heat and/or hot water
The owner was served with a copy of the complaint and afforded
an opportunity to respond. The owner did not file a response.
The Administrator ordered a physical inspection of the
building. The inspection was conducted on October 22, 1990. The
inspector visited various apartments and reported hot water
temperature varying from 85 degrees to 100 degrees. The inspector
also noted that heat was not required to be provided at the time of
the inspection.
The Administrator issued the order here under review on March
22, 1991. The inspector's report was cited as the basis for
ordering a rent reduction for all rent regulated tenants.
FD 630384-RO
On appeal the owner, through counsel, states that:
1. The tenants' complaint was not sufficiently
detailed regarding dates and times wherein there
was not adequate heat/hot water
2. The agency failed to serve a copy of the inspection
report on the owner and afford it 21 days to make
repairs
3. The owner made repairs prior to the issuance of the
order here under review and as a result of such
efforts to ascertain the problem with the boiler, a
rent cut is not warranted
Twenty-six tenants filed responses and requested that the
order here under review be affirmed citing continued hot water
problems. The owner filed a reply on December 20, 1991 and
enclosed bills from a plumbing contractor. The owner stated that
these bills showed that hot water had been turned off in order to
fix leaks in various apartments.
After careful review of the evidence in the record, the
Commissioner is of the opinion that the petition should be denied.
The Commissioner notes that the owner did not respond to the
complaint although afforded an opportunity to do so. It is settled
law that an administrative appeal is not a de novo proceeding and
the Commissioner may only consider facts or evidence presented to
the Administrator unless such facts or evidence could not have been
offered below. Since the owner did not present to the
Administrator the repair bills that it had in its possession and
submits with the petition, or any other evidence or defenses in
response to the complaint, these claims are beyond the scope of
review of this appeal.
With regard to the owner's assertion that it was entitled to
service of a copy of the inspection report, the Commissioner has
held that there is no such requirement and the service of the
complaint puts the owner on adequate notice of the existence of the
conditions and the need for correction thereof. The courts have
upheld the Commissioner's ruling (see Empress Manor Apartments v.
DHCR 147 A.D.2d 642, 538 N.Y.S.2d 49 [2nd. Dept., 1989]).
The Commissioner notes that the owner has applied for rent
restoration and said application was granted on February 6, 1992
(see Docket No FE 630169 OR)
THEREFORE, pursuant to the Rent Stabilization Law and Code and
Rent and Eviction Regulations it is
ORDERED, that this petition be, and the same hereby is,
denied, and that the Rent Administrator's order be, and the same
FD 630384-RO
hereby is, affirmed.
ISSUED:
JOSEPH A. D'AGOSTA
Acting Deputy Commissioner
|
